Gates v. Sweitzer

• Decision Date: 19 February 1932
• Docket Number: No. 20658.,20658.
• Citation: 347 Ill. 353,179 N.E. 837
• Court: Illinois Supreme Court
• Parties: GATES 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.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 commissionersby 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, 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 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 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 their case is bottomed on the principal contention that the statement of the purpose of the levy to pay interest heretofore due and principal heretofore required to be paid is obviously false, for the reason that, as alleged in the bill and admitted by the demurrer, those items were paid when due, and, this being so, they were presumably paid out of funds applicable thereto. It is argued that this presumption arises out of the fact that the commissioners could not pay said items out of other funds without violating their duties, and that therefore the levy ordinance shows that these levies are, in fact, for an alleged amount of uncollected taxes, including tax forfeitures, judgments refused, and taxes in process of collection which the commissioners have no authority to levy. It may be observed, regarding this contention, that the bill does not allege that these taxes have been paid out of funds applicable thereto, or that the levy is being made for the purpose of relevying tax forfeitures, judgments refused, or taxes in process of collection. Counsel argue, however, that such must be the conclusion from the allegations of the bill considered in connection with the statement of purpose of the levy, for the reason that the court has a right to presume that the officers did their duty, and therefore paid the interest and bond installments due, out of taxes collected for that purpose. Such presumption, however, can arise only in case the commissioners have no authority to use, temporarily, other idle funds in their hands for the purpose of paying the interest and bond installments due. The purpose clearly set out in the levy ordinance is to levy the amount necessary to complete the payment of interest and installments of principal due, the levy for which was made in the levy ordinance of 1927, but which were not collected. The amount here sought to be levied is the difference between the amount levied for these items for the year 1927 and the amount actually collected pursuant to that levy. These levy ordinances clearly show a deficiency in the collection of taxes levied by the 1927 ordinance for bond purposes, and that the purpose of the ordinance is to levy a tax to meet that deficiency. First, then, to determine whether such presumption as counsel here argue may be indulged, it is necessary to consider whether, in the interest of good business and the protection of the credit of the municipality, the commissioners may temporarily use other idle funds in their hands to meet bond demands. If such can legally be done, the presumption for which counsel for appellants earnestly...