Fuller v. Heath
| Decision Date | 30 June 1878 |
| Parties | HENRY FULLERv.MONROE HEATH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court of the First District; the Hon. THEODORE D. MURPHY, presiding Justice, and GEO. W. PLEASANTS and J. M. BAILEY, Justices.
This is a suit in chancery, begun in the circuit court of Cook county at the April term, 1878, by Fuller, a tax-payer of the city of Chicago, against Heath, the mayor, Farwell, the comptroller, and the city, as a corporation, asking an injunction forbidding the further issue of city treasury warrants (described in the bill) in the form mentioned, or any instrument purporting to add to the debt of the city, so long as the indebtedness of the city remains in excess of the constitutional limitation.
The bill charges that the ordinance purporting to make general appropriations for the fiscal year beginning January, 1878, was passed in March, 1878, and that the appropriations embraced therein amount to $3,777,757.23; that on March 25, 1878, an ordinance was passed levying taxes for that amount for that year, and directing the city clerk to certify the same to the county clerk; that all this was duly certified to the county clerk; that during all that time, the city of Chicago was and is indebted beyond the constitutional limitation of 5 per cent; that there have been prepared and issued to employees of the city, for services rendered during that fiscal year, instruments in the following form:
“CITY TREASURY WARRANT, 1878.
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¦No. --. $ --.¦Chicago, Ill. __________, 1878.¦
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Treasurer of the City of Chicago:
From the taxes of the year 1878, appropriated and levied for the (Police) Department, when received by you, pay _______, or bearer, the sum of $_______, being for services rendered (or materials furnished), and payable out of the appropriation for said department, and charge the same to the (Police) fund.
The taxes to be collected for account of this fund are specially appropriated, set apart and pledged to the payment of this and all warrants drawn thereon, and which warrants do not exceed 85 per cent of the appropriation made therefor.
This warrant is also receivable in payment of city taxes for the year 1878.
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¦Countersigned.¦____ ______, Mayor. ¦
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¦ ¦____ ______, Comptroller. ¦
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Note.--Present in payment of city taxes after January 1st, 1879.”
The bill further charges that the mayor and comptroller threaten that they will continue to issue, from time to time, for the current expenses for 1878, warrants of this character to the amount of $3,000,000, but not to exceed 85 per cent of the tax levy, and not faster than current expenses may require. It is further charged in the bill, that the city, being in debt beyond the constitutional limitation, has no lawful power to incur any further debt, and that said officers have no power to issue such warrants.
The prayer of the bill is, that the mayor, the comptroller and the city be enjoined and forbidden to further issue such warrants while the city remains indebted beyond the constitutional limit, and for general relief.
The defendants demurred to the bill. The circuit court sustained the demurrer and dismissed the complainant's bill. Complainant appealed to the Appellate Court of the First District, and there the decree was affirmed, and complainant appeals to this court. Mr. EDWARD ROBY, for the appellant:
The appropriation bill and taxing ordinance shown in the bill are void.
Passed in March, they were passed at a time the law vested no authority. Rev. Stat. 227, secs. 89, 90, p. 231, sec. 111.
To the mayor and aldermen elected in April (Rev. Stat. 216, secs. 48, 49, 52) the power is committed by law, and not those who go out of office at that time. Rev. Stat. 227, secs. 88-90.
The last line of sec. 88, “or at such other times as may be fixed by ordinance,” is void because its operation is to authorize the exception of some cities from the application of the law, which, but for such exception, would be their organic law.
The law fixing the time when corporate powers shall be exerted, or defining the composition of the body that shall exert the powers, is a part of the charter or law for the organization of the city. The People v. Wright, 70 Ill. 391; The Thames Manufacturing Co. v. Lathrop, 5 Conn. 550; Sanderson v. La Salle, 57 Ill. 441.
The law is uniform as to all cities. Const. art. 4, sec. 22, art. 11, sec. 1. The General Assembly can not delegate the power to change that law. Ibid. art. 4, secs. 11-13. The powers to be exerted by the mayor and eighteen aldermen, in the first three months after their election, depend on the general law of the State, and must be uniform throughout the State. They can not be local under different sections of the same law, or under different laws, nor depend on the will of the mayor and aldermen who had preceded them. The city council consists of a mayor and thirty-six aldermen, and the powers to be exercised by a mayor and eighteen aldermen to be elected in April, 1879, associated with the eighteen aldermen elected in April, 1878, must, on the first day of May, 1879, be uniform throughout the State of Illinois. The law conferring the power must be general, and vest the same power at the same time in each city council organized under it in the State. It can not be local in any particular. The People v. Cooper, 83 Ill. 589.
The appropriation and levy of $590,682.44 for school purposes is void.
By the general school law the management of common schools in every district in the State is vested in a body elected by the people for that purpose in each district; or for location of school house sites, purchasing school sites, keeping schools more than nine months and borrowing money for such purposes, it is vested in the people of the districts, and these particulars are managed by direct vote. (Rev. Stat. 962, secs. 47, 48.) In the last part of sec. 80 is a local law vesting the exclusive management of schools in Chicago in a body not elected by the people of districts--not even elected by the people of the city. Throughout the State, but here, they are to be managed by direct vote and by elected boards; in this one locality they are to be managed by a special board not elected. No law could be framed in more direct contravention of the command: “ The General Assembly shall not pass special or local laws providing for the management of common schools.” (Const. art. 4, sec. 22.)
Power to manage and support common schools is not found in the law of incorporation of Chicago; it is therefore not a corporate purpose of Chicago. Chicago can lay no tax except for corporate purposes of the city. The levy, therefore, is void. ( The People v. Trustees of Schools, 78 Ill. 136, pp. 139, 140; Cooley on Taxation, 209; Chicago and St. Louis R. R. Co. v. Sparta, 77 Ill. 505; Sleight v. The People, 74 Id. 49, 50; Law et al. v. The People, 87 Ill. 385.)
Article 8 of the constitution, and especially the penalties of section 4, show that no city corporation, or officer of a city, as such, can have any connection with the system of free schools of the State.
The city should not be permitted to obtain advances and spend money and pledge itself to collect and pay money for purposes for which it can not lay or collect a tax. The instruments shown in the bill are the contracts of the city, not the officers.
They are promissory notes of the city or of the same nature. Daniel reviews authorities where such drafts by a municipal corporation on itself are not regarded as negotiable instruments, so as to cut off all equities of the corporation (secs. 427-435), but all these cases regard the instruments only as the acts, or incidents of the contracts of the corporation; not negotiable, because the officers had no power to issue negotiable instruments, but instruments on which the corporation is directly or contingently liable, as in Kingbury v. Pettis County, 48 Mo. 207-213. The cases all hold these certificates or warrants to be evidences of a debt of the corporation; or if they hold that they do not amount to evidence of the debt, they hold that they are exhibits of such a debt, which is not extinguished by their issue and on which appropriate remedies may be had against the corporation. Or if the corporation had no power to incur the debt, then the debt and warrants are held wholly void, and that no money raised by the corporation can be paid on them. ( Parsons v. Goshen, 11 Pick. 396.) They all come to the doctrine of The Floyd Acceptances, 7 Wall. 676, that though in form of corporate acts, directing a corporate act of payment, and if authorized by law, such that they must be treated as promissory notes, as there is no authority in the corporation to issue them, and they are not in any contingency binding on the corporation according to their implication and import, they are void, and the claims of debt for which they are issued are void also. For a valuable consideration rendered on request, the law in all cases raises a positive and well defined undertaking and promise to pay--an implied or express assumpsit.
The contracts raised by advancing money, rendering services and supplying materials to the city, at its request, to the extent of $3,000,000, for current expenses and...
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