Gates v. Sweitzer

CourtSupreme Court of Illinois
Citation347 Ill. 353,179 N.E. 837
Decision Date19 February 1932
Docket NumberNo. 20658.,20658.
PartiesGATES et al. v. SWEITZER, County Clerk, et al.

347 Ill. 353
179 N.E. 837

GATES et al.
v.
SWEITZER, County Clerk, et al.

No. 20658.

Supreme Court of Illinois.

Feb. 19, 1932.


Suit by Philetus W. Gates and others against Robert M. Sweitzer, County Clerk, and others. From a decree dismissing the bill, complainants appeal.

Affirmed.


[347 Ill. 354]

[179 N.E. 838]

Appeal from Superior Court, Cook County; Robert E. Gentzel, judge.
Brundage, Landon & Holt, of Chicago (Robert N. Holt and Floyd E. Britton, both of Chicago, of counsel), for appellants.

John A. Swanson, State's Atty., George E. Gorman, and Kirkland, Fleming, Green & Martin, all of Chicago (Joseph B. Fleming, Hayden N. Bell, and Joseph H. Pleck, all of Chicago, of counsel), for appellees.


STONE, C. J.

Appellants filed a bill in the superior court of Cook county seeking to enjoin the county clerk from extending various items of taxes levied by the South Park commissioners[347 Ill. 355]by their tax levy of 1929, amounting to $360,639. General and special demurrers were filed to the bill, which were sustained and the bill dismissed for want of equity. Appellants bring the cause here for review.

The bill avers that appellants are taxpayers and owners of real estate situated in the South Park district. They aver by their bill that the South Park commissioners in their 1929 levy provided for the payment of principal and interest on the various issues of bonds of the district maturing during the next year as well as taxes for other corporate purposes, and that in addition to this levy they included eleven sections in the levy ordinance, setting out that in addition to the sums levied there was by each of those sections levied a tax of a certain amount of money therein specified, to pay, in part, the interest and installments of principal theretofore due on bonds issued under and in pursuance of the act (giving its title) under which the specific bonds were issued. These sections of the ordinance each contain the following: ‘The amount of the tax hereby levied being the amount of the difference between (a) the amount levied by the South Park Commissioners for the year 1927 to pay interest as it fell due on said bonds and that portion of the principal of said bonds required to be paid during the year next succeeding the year of said levy; and (b) the amount of taxes actually collected by the said South Park Commissioners pursuant to said levy for the year 1927.’ These sections of the levy ordinance varied only in the statement of the amount sought to be raised under it and the title of the act under which the bonds for which the levy was made were authorized. The bill charges that in each year following the respective dates of issuance of the bonds, including 1927, the commissioners made a tax levy, which included items for principal and interest on the bonds equal to or exceeding the amount necessary to pay the interest when it fell due and the portion of principal required during the next succeeding year to be paid, [347 Ill. 356]and that in addition the county clerk, in estimating and determining the rate to be extended, included an item for loss and cost of collection of approximately 8 per cent. of the amount of the levy. The bill also charges that all the interest on the bonds described in the tax levy objected to here, and the installments

[179 N.E. 839]

of principal maturing during the year 1928 and years prior thereto, were paid at maturity; that there are no outstanding and unpaid bills against the commissioners for the years 1927 and 1928 or 1929, and that the tax sought to be extended and collected under these sections of the levy ordinance of 1929 cannot be applied to the payment of the bonds and interest theretofore due as alleged in the ordinance, since the bonds and interest were paid at maturity. It is further charged on information and belief that, for each of the years during which any of the bonds and interest referred to in these eleven sections of the levy ordinance matured, there was levied and extended for general purposes the limit of taxes allowed under the law. It is also charged that the taxes sought to be levied under said eleven sections of the levy ordinance are for no legal purpose and are without authority or justification in law and are void. The bill prays a writ of injunction against the extension of this tax.

The demurrer filed by appellees was general and special. As special ground for demurrer it is set out that the bill does not charge that the county clerk extended a rate sufficient to produce, or which in fact did produce in full, the tax levied by the commissioners in the year 1927 to pay the interest and the principal falling due during the year next succeeding the levy; that it does not charge that the sum of $360,639, being the total of the levy provided in the eleven sections of the levy ordinance, was greater than the deficiency or difference between the amount levied in 1927 for bond and interest purposes and the amount actually collected pursuant to that levy; that there is no charge in the bill that all or any part of the tax levied as in said [347 Ill. 357]eleven sections of the levy ordinance has ever been collected, nor is there a charge in the bill that the bond interest and principal payments referred to in those sections of the levy ordinance have been paid out of taxes collected for that purpose, or that the commissioners had otherwise than by the levy of the tax in question provided for the collection of a tax sufficient to pay the interest and principal as due for the year next succeeding the 1927 levy. Counsel for appellants say here that the bill charges and the demurrer admits that the original bond ordinances authorizing the bonds were properly certified, and that each year an extension of taxes was made for the purpose of paying interest and accruing principal; that each year the clerk, in extending this tax, included an item for loss and cost of collection which in 1927 amounted to about 8 per cent. of the levy for bonds and interest; that all bonds and interest described in the levy in controversy maturing in 1928 were paid at maturity; that there were no outstanding unpaid bills against the park commissioners; and that a levy for corporate purposes to the extent of the law was made in 1927, and therefore, they say, a good case is made by the bill.

It is argued, first, that the commissioners have no power to levy a second tax to pay bond interest and principal already paid; that the purpose expressed in the levy is false, and that the taxes extended could not be applied to the purpose for which they are ostensibly levied, but could be applied only to current general corporate expenditures in excess of the limit allowed by law. Counsel say that...

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35 cases
  • Schreiber v. Cook Cnty., 28261.
    • United States
    • Supreme Court of Illinois
    • November 22, 1944
    ...to pay their portion of a former levy. Statutes authorizing such an additional levy have been sustained by this court. Gates v. Sweitzer, 347 Ill. 353, 179 N.E. 837, 79 A.L.R. 1151. In Woodrough v. Douglas County, 71 Neb. 354, 98 N.W. 1092, a provision authorizing the foreclosure of a tax l......
  • Lutkauskas v. Ricker, 117090.
    • United States
    • Supreme Court of Illinois
    • January 23, 2015
    ...of funds contemplates that such funds have been used for an improper purpose that is not authorized by statute. In Gates v. Sweitzer, 347 Ill. 353, 179 N.E. 837 (1932), we held that “[m]unicipal officers have no right to divert moneys from one fund to another and different fund for which it......
  • Lutkauskas ex rel. Lemont-Bromberek Combined Sch. Dist. 113a v. Dr. Timothy Ricker, Robert Beckwith, John Wood, Dr. Mary Gricus, Lisa Wright, Kevin Doherty, David Leahy, Gwen O'Malley, Sue Murphy, Al Albrecht, Underwriters At Lloyd's, London, Knutte Assocs. P.C., Docket No. 1–12–1112.
    • United States
    • United States Appellate Court of Illinois
    • November 18, 2013
    ...in the sense of turning such fund permanently from its purpose or the final appropriation of it to some other use.” Gates v. Sweitzer, 347 Ill. 353, 359, 179 N.E. 837 (1932); see also Michaels v. Barrett, 355 Ill. 175, 185–86, 188 N.E. 921 (1934) (rejecting argument that statute providing f......
  • City of Newport v. McLane
    • United States
    • Court of Appeals of Kentucky
    • September 25, 1934
    ...belonging to one fund, permanently, from its purpose or the final appropriation of it, to some other use of the city. Gates v. Sweitzer, 347 Ill. 353, 179 N.E. 837, 79 A.L.R. 1151. The city of Newport is a city of the second class. Originally it operated under an aldermanic and a councilman......
  • Request a trial to view additional results

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