Lubezny v. Ball
| Decision Date | 17 April 1944 |
| Docket Number | Gen. No. 9894. |
| Citation | 322 Ill.App. 78,53 N.E.2d 988 |
| Parties | LUBEZNY v. BALL, TOWNSHIP TREASURER. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Du Page County; Win G. Knoch, Judge.
Petition by Theodore Lubezny against Arley M. Ball for writ of mandamus to compel defendant as township treasurer of Township 40 N., R. 12 E., Cook County, Illinois and ex officio treasurer of Elmwood Park Public School District No. 85, Cook County, Illinois, to pay petitioner's tax anticipation award for the year 1932 from the fund in defendant's hands received from collection of taxes levied for educational purposes for 1932. The trial court ordered the peremptory writ of mandamus issued as prayed and respondent appealed to the Supreme Court and the case was transferred to the Appellate Court for the second district.
Order reversed and cause remanded with direction.
Roy A. Whiteside, of Chicago, for appellant.
Richard F. Locke, of Glen Ellyn, for appellee.
Elmwood Park Public School District No. 85, Cook County, Illinois, on July 7, 1932, adopted a resolution to issue anticipation warrants drawn against and in anticipation of taxes levied for educational purposes for the district for the year 1932 under the provisions of section 117 of the free schools act which then read as follows:
“Every warrant issued under the provisions of this section shall bear interest, payable only out of the taxes against which it is drawn, at a rate not exceeding six per centum per annum, from the date of its issuance until paid, or until notice shall be given by publication in a newspaper, or otherwise, that the money for its payment is available, and that it will be paid on presentation, unless a lower rate of interest shall be specified therein, in which case the interest shall be computed and paid at said lower rate.” (Smith-Hurd Stats. c. 122, § 125, Sec. 125, chap. 122, Ill.Rev.Sts. 1931.)
Warrants were issued and sold by the district from July, 1932, to January, 1936. The warrants were numbered in sequence as issued, beginning with number one, and 3,279 were issued. The warrants did not provide for their payment in any numerical order. $36,235 was paid in numerical order for warrants numbered from one to fifty-eight inclusive, when they were presented for payment and taxes had been collected to pay each of them. Warrants were received in payment of taxes against which they were issued. There is now outstanding and unpaid warrants aggregating the principal amount of $63,194.62. The petitioner is the assignee and holder of warrant number 59 for $75. There is in the hands of the township treasurer $4,100 received by him from collection of taxes levied for educational purposes for the year 1932. The petitioner has made demand on the township treasurer for the payment of his warrant with six per cent interest, the rate of interest specified in the warrant, from its date, December 22, 1932. Payment of the warrant has been refused by the present township treasurer.
The petitioner on March 20, 1942, filed in the Circuit Court of DuPage county his petition for the writ of mandamus against the township treasurer (and ex-officio treasurer of the school district) commanding him, out of the fund then in his hands received from the collection of taxes levied for educational purpose for 1932, to pay petitioner's warrant with interest thereon. The township treasurer filed an answer to the petition alleging (and undenied by the petitioner), that there are outstanding warrants to the aggregate principal amount of $25,000 which were issued within 75% of said tax levy. The validity of petitioner's warrant is not questioned, it having been issued before warrants were issued in excess of the 75% limitation. It is stated in the pleadings that the total face amount of warrants issued aggregated approximately $121,000. The tax levy for educational purposes was $85,131.86. It appears from the pleadings that the $4,100 which the township treasurer has on hand together with the proceeds of the collection of all of said taxes outstanding, if and when made, will be insufficient to pay the lawful warrants to the aggregate amount ($25,000) of unpaid warrants with interest.
The petition is drawn on the theory that the petitioner is entitled to the payment, in toto, of his warrant under the proper construction of the sections of the statute quoted. The answer of the respondent is framed on the theory that the taxes collected constitute a trust fund for the payment pro rata of all the valid, or lawful, anticipation warrants issued. The cause was heard by the trial judge upon the petition, the answer thereto and the arguments of counsel. The court ordered the peremptory writ of mandamus issued as prayed in the petition. The respondent appealedto the Supreme Court which transferred the case to this court, the Supreme Court having decided that the case does not relate to revenue.
As before stated all warrants bearing a number less than 59 were paid in full by the district in numerical order beginning with lowest numbered warrant, when presented to the township treasurer then in office. It would thus appear that if the warrants are legally payable in this manner that the petitioner was entitled to the writ as prayed for in his petition.
The petition contains one paragraph which is the foundation of two reasons urged by the petitioner that the warrants should be paid in numerical order by the treasurer as a statutory duty. It is alleged that it was the long established practice, usage and custom respecting the payment of school anticipation warrants, prior to the year 1935, to pay such warrants in numerical order; that the General Assembly of the State of Illinois, in 1935, enacted an amendment to Chapter 122, section 132, of the Revised Statutes Smith-Hurd Stats. c. 122, § 155, providing that warrants issued under the provisions of said section shall show upon their face that they are payable in the numerical order of their issuance; and that, by so doing, said General Assembly made a part of the statutory law of this State the long established principles, practices, usages and customs theretofore existing respecting payment of school tax anticipation warrants. This allegation of the petition is admitted by the respondents' answer. The implication of the allegation that it was the intention of the legislature, by amending the section, “to approve and recognize” the alleged custom, usage and practice to pay school anticipation warrants in numerical order, is a legal conclusion of the petitioner, and not binding on this court by any admission in the answer. It is not otherwise argued by the petitioner. Phillips v. Gannon, 246 Ill. 98, 92 N.E. 616.
The allegation relative to the long established custom of paying school anticipation warrants, however, forms the basis of the contention of the petitioner that section 117, was in 1932 entirely silent as to the manner in which the warrants were to be paid. That a judicial construction of the section is required and that this court should follow the doctrine that where a statutory provision is doubtful and there is need of interpretation, the practical exposition of it by departments of government called upon to act under it, acquiesced in by the people, especially for a considerable period of time, raises a strong presumption that it is correct and will generally be adopted by the courts. Neiberger v. McCullough, 253 Ill. 312, 97 N.E. 660. See also Nye v. Foreman, 215 Ill. 285, 74 N.E. 140.
It is stated by counsel for petitioner that the first tax anticipation warrant act applicable to school districts and boards of education was enacted in 1879 (Laws 1879, p. 78, § 2), and was re-enacted without substantial change in the School Act approved June 12, 1909. That between June 12, 1909, and July 10, 1935, the legislature on at least three different occasions considered and amended section 117 of the School Act (Laws 1917, p. 758, § 1; Laws 1921, p. 832, § 1; Laws 1929, p. 701, § 1), but did not provide any change in the customary method of paying tax anticipation warrants. It is also true as stated by the petitioner that in 1934 groups of holders of unpaid anticipation warrants, which had been issued by the board of education of the City of Chicago, began to claim that their warrants should be paid pro rata because the balance of uncollected taxes available for their payment was insufficient to pay all the warrants in full. A statement of litigation based on claims above referred to appears in the case of South East Nat. Bank v. Board of Education, 298 Ill.App. 92, 18 N.E.2d 584. Those warrants were issued under section 132 of the school act. It is also mentioned at this time that in the case of Board of Education of the City of Chicago v. Norfolk & W. R. Co., 7 Cir., 88 F.2d 462, the United States Circuit Court of Appeals held in 1937 that school anticipation warrants of said board issued before the amendatory acts hereinafter set forth...
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