Hoy v. Kuhn

Citation295 Ill. 33,128 N.E. 829
Decision Date10 December 1920
Docket NumberNo. 13443.,13443.
PartiesHOY v. KUHN, County Clerk, et al.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Action by Alfred C. Hoy against A. A. Kuhn, County Clerk, and the Village of Glen Ellyn. Judgment for plaintiff, and the last-named defendant appeals.

Reversed and remanded, with directions.

Cartwright, C. J., and Farmer and Stone, JJ., dissenting.

Appeal from Circuit Court, Du Page County; Samuel C. Stough, judge.

Robert J. Scott and John Prendergast, both of Chicago, for appellant.

Carnahan & Slusser and George W. Thoma, all of Chicago, for appellee.

DUNN, J.

This is an appeal by the village of Glen Ellyn from a decree of the circuit court of Du Page county, restraining the collection of all the tax for the year 1919 levied by the village against the estate of William P. Cowan, deceased, in excess of $3,272.75.

The board of trustees of the village passed an annual appropriation bill on June 9, 1919, during the first quarter of the fiscal year, which began on April 15, appropriating $8,638.64 for municipal purposes. On August 25 a petition, purporting to have been signed by a majority of the legal voters of the village, was presented to the trustees, praying that they make certain additional appropriations, and on the same day the trustees passed another ordinance, making appropriations of the same amounts and for the same purposes as the previous ordinance. Afterward, on September 8, 1919, the trustees passed an ordinance, levying the whole amount appropriated by both ordinances and the further amount of $2,150, which the board of trustees had appropriated for the purpose of oiling the streets by an ordinance passed July 15, 1919, purporting to amend the annual appropriation bill of June 9.

The grounds for relief alleged in the bill were: (1) That the petition was not signed by a majority of the legal voters of the village; (2) that all the items in the additional appropriation ordinance were the same as those in the first, and were all indefinite and not specific enough, except the library tax and the tax for the health department; (3) that the levy ordinance was not published; (4) that no emergency had arisen after the passage of the first ordinance requiring additional appropriations; that the amounts first appropriated were ample and sufficient, and that the increasing of them was unreasonable and unjust; (5) that the second appropriation ordinance was passed for the sole purpose of subjecting the estate of William P. Cowan to an excessive, oppressive, and fraudulent tax.

The decree found that the petition was not signed by a majority of the legal voters of the village, and that all the appropriations, except those in the ordinance of June 9, were excessive, oppressive, fraudulent, and void, and enjoined the collection of the tax levied against the estate of William P. Cowan in excess of $3,272.75.

A court of equity cannot enjoin the collection of a tax except where the tax is not authorized by law, or is assessed upon property not subject to taxation, or where the property has been fraudulently assessed at too high a rate. Cook County v. Chicago, Burlington & Quincy Railroad Co., 35 Ill. 460;Coxe Bros. & Co. v. Salomon, 188 Ill. 571, 59 N. E. 422. A tax levied by public authorities having power to levy it will not be enjoined for a mere irregularity or informality in the exercise of the power, but the persons affected will be left to their legal remedy or defense. Merritt v. Farriss, 22 Ill. 303;Gray v. Board of School Inspectors, 231 Ill. 63, 83 N. E. 95.

By section 2 of article 7 of chapter 24 of the Revised Statutes, the board of trustees was required to pass an annual appropriation bill within the first quarter of each fiscal year, appropriating such sums of money as might be deemed necessary to defray all the necessary expenses and liabilities of the corporation, specifying the objects and purposes for which such appropriations were made, and the amount appropriated for each object or purpose. It was further provided that no further appropriation should be made at any other time within the fiscal year unless the proposition to make such appropriation had been first sanctioned by a majority of the legal voters of the village, either by a petition signed by them or at a general or special election duly called therefor. No election was held or called, and the board of trustees was therefore without authority to make the additional appropriations or levy the additional tax, except upon the petition of a majority of the legal voters of the village. A petition was presented to the board of trustees, asking them to make the additional appropriations, and it was recited in the ordinance that the petition was signed by a majority of the legal voters of the village. If the petition was signed by such majority, the board of trustees had the power to make the additional appropriations. The board's decision of the preliminary question of the sufficiency of the petition may be attacked, but it is prima facie correct, and the burden was on the appellee to prove that the petition was not signed by a majority of the legal voters of the village. People v. Ellis, 253 Ill. 369, 97 N. E. 697, Ann. Cas. 1913A, 589. The evidence introduced on this questionshows that 1,001 votes were cast at the village election in April, 1919; that 591 legal voters signed the petition, 212 of whom did not vote at the spring election, and that 93 wives or husbands of legal voters who signed the petition did not vote. Adding to the number of votes actually cast the 212 and the 93 who did not vote, the appellee argues that the number of voters is shown to be 1,306, of which number 591 is less than half. This argument is based upon the hypothesis that all of the 1,001 who voted at the election in April continued to be voters August 25. There is no evidence of this fact, and the number of voters...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT