Jones v. O'Connell

• Decision Date: 03 February 1915
• Docket Number: No. 9490.,9490.
• Citation: 107 N.E. 731,266 Ill. 443
• Parties: JONES v. O'CONNELL, County Treasurer.
• Court: Illinois Supreme Court

266 Ill. 443

107 N.E. 731

JONES

v.O'CONNELL, County Treasurer.

No. 9490.

Supreme Court of Illinois.

Dec. 16, 1914.

Rehearing Denied Feb. 3, 1915.

Appeal from Superior Court, Cook County; Hugo Pam, Judge.

Bill by Frank W. Jones against William L. O'Connell, County Treasurer of Cook County. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded, with directions.

David K. Tone, of Chicago, for appellant.

Church, Shepard & Day, of Chicago (Frank L. Shepard, of Chicago, of counsel), for appellee.

CARTWRIGHT, C. J.

The appellant, Frank W. Jones, an owner of property and taxpayer in the city of Chicago, in behalf of himself and all other taxpayers, filed his bill of complaint in the superior court of Cook county against the appellee, William L. O'Connell, county treasurer of said county, alleging that the defendant, as county treasurer, had collected from December 1, 1910, to October 12, 1912, inheritance taxes aggregating $2,317,858.69; that he retained for his personal use and benefit out of the amount so collected the sum of $46,357.17, and transmitted the balance to the treasurer of the state; that he had also collected inheritance taxes aggregating $1,000,000, no part of which had been turned over to the treasurer of the state, and he was about to retain 2 per cent. of said sum as his own; that he claimed the amount so retained and the amount he was about to retain for his services in collecting and paying over taxes pursuant to section 21 of the Inheritance Tax Law; that the salary of the county treasurer of Cook county fixed by law was $4,000, and the salary of a judge of the circuit court of Cook county was fixed at $10,000 a year; and that the defendant had collected his salary of $4,000 a year, which, together with the amount so retained from inheritance taxes, amounted during said period to $53,000. The bill alleged, as a matter of law, that section 21 of the Inheritance Tax Act, permitting defendant to retain for his services 2 per cent. of the moneys paid to him as county treasurer and turned over to the treasurer of the state, was unconstitutional and void. The bill prayed for an injunction restraining the defendant from taking and appropriating to himself any amount over and above his annual salary, and that he be decreed to restore to the treasury of Cook county the amount withdrawn, and to pay the same over to the treasurer of the state. By amendment the county of Cook was added as a defendant. A general demurrer to the amended bill was filed by the defendant, William L. O'Connell, and the chancellor sustained the demurrer. The complainant elected to stand by his amended bill, and it was dismissed for want of equity, at his costs. The record has been removed to this court by appeal.

The facts alleged and admitted by the demurrer are that the defendant, William L. O'Connell, as county treasurer of Cook county, received the salary of $4,000 per annum allowed by law for his services as county treasurer; that, in addition to such salary, he retained out of the inheritance taxes $46,357.17 from December 1, 1910, to October 12, 1912; that he was about to retain 2 per cent. of a further sum of $1,000,000 inheritance taxes; and that the salary of a judge of the circuit court of Cook county was fixed at $10,000 per annum. His claim of a right to the money retained and to retain further sums from inheritance taxes is based on section 21 of the Inheritance Tax Act (Laws 1909, p. 312), which provides that the treasurer of each county shall be allowed to retain 2 per cent. of all taxes paid and accounted for by him under the act in full for his services in collecting and paying the same, in addition to his salary or fees allowed by law. By the bill the complainant alleged that section 21 is in conflict with section 9 of article 10 of the Constitution, which provides that the treasurer of Cook county shall receive as his only compensation a salary to be fixed by law, which in no case shall be as much as the legal compensation of a judge of the circuit court of said county, and all fees, perquisites, and emoluments above the amount of said salary shall be paid into the county treasury. Section 31 of the Fees and Salaries Act fixes the salary of the county treasurer of Cook county at $4,000 per annum, and that salary was claimed and collected by the defendant.

The amount retained by the defendant, O'Connell, was a certain definitely fixed sum of money, and it is argued that the chancellor did not err in sustaining the demurrer, because a court of equity is without jurisdiction in such a case, and will remit the complainant to a court of law, which is competent to afford an adequate remedy. The complainant could not institute any suit at law to recover from O'Connell the sum of money retained out of the inheritance taxes, or any part of such sum, since the legal right and title to the money is not in him, and his right is not one recognized or enforced by a court of law. Courts of equity were established to protect and enforce equitable rights and interests not recognized by courts of law, as well as to administer equitable remedies which courts of law were unable to grant. Wherever the primary right or interest to be maintained or enforced is purely equitable, created by equity, and not by the law, the jurisdiction of courts of equity is exclusive. Courts of law have no jurisdiction of cases in which the right to be maintained, protected, or enforced is purely equitable, unless such power has been expressly conferred by statute, which has been done as to some rights and interests, not including the right or interest alleged in this case. If taxpayers have a right or interest which the bill in this case was intended to protect, it is of a purely equitable nature; the legal right and title being in the state. If the defendant, O'Connell, has money in his hands which he has no right to retain, but which he is bound to pay to the state treasurer, the sum retained by him must be made up by taxation, and every taxpayer has an equitable right to see that the money so unlawfuly retained shall be paid to the state treasurer for the use of the state. This court has always recognized that rule and has uniformly held that the taxpayers are, in equity, the owners of the property of a municipality, and whenever public officials threaten to pay out public funds for a purpose unauthorized by law or misappropriate such funds, equity will assume jurisdiction to prevent the unauthorized act or to redress the wrong, and this be because the right and interest are equitable in their nature, and are not recognized by courts of law. Colton v. Hanchett, 13 Ill. 615;perry v. Kinnear, 42 Ill. 160;Beauchamp v. Kankakee County, 45 Ill. 274;Stevens v. St. Mary's Training School, 144 Ill. 336, 32 N. E. 962,18 L. R. A. 832, 36 Am. St. Rep. 438;Littler v. Jayne, 124 Ill. 123, 16 N. E. 374;Adams v. Brenan, 177 Ill. 194, 52 N. E. 314,42 L. R. A. 718, 69 Am. St. Rep. 222;Burke v. Snively, 208 Ill. 328, 70 N. E. 327. In each of these cases it was held that a taxpayer might assert his equitable right to restrain the illegal use or misappropriation of publicfunds in which he, in common with other taxpayers, had an interest.

The court has denied the jurisdiction of a court of equity in cases where the right sought to be protected or enforced was legal, and a court of law, taking cognizance of the right, could afford an adequate remedy. In County of Cook v. Davis, 143 Ill. 151, 32 N. E. 176, the county filed a bill to enforce a purely legal demand, and the remedy in a court of law by an action against the treasurer or on his official bond would have been complete and adequate. In County of Clinton v. Schuster, 82 Ill. 137, the claim of the county against the assessor and treasurer for fees and emoluments received in excess of his annual salary was legal, and, as the court found that there was no reason for a discovery, the law afforded a complete and efficient remedy. Likewise, in Ramsay v. County of Clinton, 92 Ill. 225, equity had no jurisdiction, since the money paid by the county to its clerk was recoverable in an action at law. These two classes of cases clearly mark the distinction between the protection and enforcement of an equitable right where the jurisdiction of equity is exclusive and the protection and enforcement of a legal right where the prayer for an equitable remedy will be denied because not necessary for the protection of the party having the right. There have been other cases in which a taxpayer has been refused the aid of a court of equity where public funds were only indirectly involved, and the primary purpose was not to prevent an illegal appropriation of such funds. An example is found in Burgess v. Davis, 138 Ill. 578, 28 N. E. 817, where the real controversy was whether Richard Prendergast, by accepting the office of trustee of the sanitary district of Chicago, had resigned his office of judge of the county court, so that he was unlawfully holding the latter office. The determination of questions concerning the appointment or election of public officers is purely legal, and cognizable only in courts of law, and, that being the real purpose of the suit, equity had no jurisdiction. Lavin v. Commissioners of Cook County, 245 Ill. 496, 92 N. E. 291, was of the same character, and a court of equity would not take jurisdiction to contest the title to an office of a de facto incumbent. In the case of Highway Com'rs v. City of Bloomington, 253 Ill. 164, 97 N. E. 280, Ann. Cas. 1913A, 471, the commissioners were entitled to the money sued for, and the claim made in the case that the suit should have been brought either in the name of the town or of the township treasurer was not raised in the circuit court, and in an action for money had and received for the use of the plaintiff it is not necessary that there should be privity in fact between the parties. The decision in that...