Otis v. People ex rel. Raymond

• Decision Date: 16 April 1902
• Citation: 63 N.E. 1053,196 Ill. 542
• Parties: OTIS v. PEOPLE ex rel. RAYMOND.
• Court: Illinois Supreme Court

196 Ill. 542

63 N.E. 1053

OTIS

v.PEOPLE ex rel. RAYMOND.¹

Supreme Court of Illinois.

April 16, 1902.

Error to Cook county court; O. N. Carter, Judge.

Proceedings by the people, on the relation of Samuel B. Raymond, county treasurer and ex officio county collector, for judgment confirming the sale of the property of Philo A. Otis for delinquent taxes. Judgment for plaintiff, and defendant brings error. Affirmed.Taylor & Martin, for plaintiff in error.

Edwin W. Sims, Co. Atty., and Frank L. Shepard, Asst. Co. Atty., for defendant in error.

HAND, J.

This is a writ of error to review a judgment for sale of certain real estate of the plaintiff in error located in the city of Chicago, rendered by the county court of Cook county, for the delinquent school tax levied thereon for the year 1900, over the objections of the plaintiff in error. Taxes aggregating the sum of $7,896.08 were levied on said real estate for that year, and on April 27, 1901, the plaintiff in error voluntarily paid to the county collector the state, county, city, library, sanitary district, and South Park taxes in full, leaving unpaid thereon only the tax levied for school purposes, which is for the sum of $3,419.73, and for which amount, only, the county collector applied for judgment and order of sale.

It is first contended by plaintiff in error that a part of the city tax paid by him was invalid on the ground that the city of Chicago, at the time of the levy thereof, was indebted beyond the 5 per cent. limit, as provided in section 12 of article 9 of the constitution, and it is urged that, in case it should be found that any part of the school tax is valid, so much of the city tax as is found to be invalid should be applied in payment of the school tax, and that judgment should be rendered for only so much of the school tax as remains unpaid after the application of the city tax already paid by him which is found to be invalid. The plaintiff in error voluntarily paid to the county collector the city tax with a full knowledge of all the facts, and the same cannot be recovered back by him; neither can it be offset against the school tax sought to be collected in this proceeding. Elston v. City of Chicago, 40 Ill. 514, 89 Am. Dec. 361;People v. Miner, 46 Ill. 374;Falls v. City of Cairo, 58 Ill. 403;Union Bldg. Ass'n v. City of Chicago, 61 Ill. 439;Swanston v. Ijams, 63 Ill. 165;Chicago, B. & Q. R. Co. v. People, 136 Ill. 660, 27 N. E. 200;Walser v. Board, 160 Ill. 272, 43 N. E. 346,31 L. R. A. 329. In Walser v. Board, supra, on page 276, 160 Ill., and page 347, 43 N. E., it is said: ‘Money paid voluntarily by one with knowledge or means of knowledge of all the facts cannot be recovered back. Elston v. City of Chicago, 40 Ill. 514, 89 Am. Dec. 361;Town of Lyons v. Cook, 9 Ill. App. 543. To recover from a municipality taxes illegally collected and paid over, the tax must have been illegal and void, paid under compulsion, or what would be equivalent thereto, [and] received to the use of the municipality from the collecting officer. Elston v. City of Chicago, supra; Union Pac. R. Co. v. Commissioners of Dodge Co., 98 U. S. 541, 25 L. Ed. 196;Preston v. City of Boston, 12 Pick. 15. The tax in this case was illegal and void, and received from the collecting officer by and for the use of the municipality, as appears from the averments of this bill. This would not be sufficient, but it must further appear the payment was compulsory. A payment made to prevent the sale of real estate for an illegal tax is not under compulsion, but must be regarded as voluntary. Stover v. Mitchell, 45 Ill. 213;Falls v. City of Cairo, 58 Ill. 403;Swanston v. Ijams, 63 Ill. 165.’

It is next contended that the school tax is invalid for the reason that the city council of the city of Chicago did not pass an appropriation ordinance and tax levy ordinance, as provided by section 2 of article 7, and section 1 of article 8, of the city and village act, specifying in each of said ordinances the purposes, in detail, for which said school tax was to be used. It appears that the board of education of the city of Chicago on March 22, 1900, transmitted to the mayor and city council, in pursuance of the resolution of said board, the following requisition for school purposes for the year 1900, the same being an estimate by said board of education of the amount to be provided in the tax levy for 1900 for school purposes:

+--------------------------------------------------+
                ¦For Building Purposes                             ¦
                +--------------------------------------------------¦
                ¦New buildings, sites, and permanent    ¦          ¦
                +---------------------------------------+----------¦
                ¦improvements               ¦           ¦$2,500,000¦
                +---------------------------+-----------+----------¦
                ¦Parental school building   ¦           ¦200,000   ¦
                +---------------------------+-----------+----------¦
                ¦Total                      ¦           ¦$2,700,000¦
                +---------------------------+-----------+----------¦
                ¦Loss in collection         ¦           ¦160,000   ¦
                +---------------------------+-----------+----------¦
                ¦Total                      ¦           ¦$2,860,000¦
                +---------------------------+-----------+----------¦
                ¦Educational purposes       ¦$7,450,000 ¦          ¦
                +---------------------------+-----------+----------¦
                ¦Less estimated revenue     ¦           ¦          ¦
                +---------------------------+-----------+----------¦
                ¦from other sources         ¦750,000    ¦          ¦
                +---------------------------+-----------+----------¦
                ¦Leaves a balance of        ¦__________ ¦$6,700,000¦
                +---------------------------+-----------+----------¦
                ¦Loss in collection         ¦           ¦450,000   ¦
                +---------------------------+-----------+----------¦
                ¦Total                      ¦           ¦$7,150,000¦
                +---------------------------------------+----------¦
                ¦Bonded indebtedness and interest.......¦          ¦
                +--------------------------------------------------+
                

It further appears that on April 4, 1900, an appropriation ordinance was passed by the city council and approved by the mayor, making appropriations for corporate, school, and public library purposes for the fiscal year from January 1, 1900, to December 31, 1900, which had incorporated therein the estimate of the board of education of said city in substantially the same form that it was transmitted to the mayor and city council, and that on April 23, 1900, a tax levy ordinance was passed by the city council and approved by the mayor, whereby the sum of $18,384,195.36 was levied and assessed on all the real and personal property within the city for the current fiscal year, which had incorporated therein the estimate of said board of education in substantially the same form that it was transmitted to the mayor and city council, and which contained a direction to the city clerk to file a certified copy thereof with the county clerk of Cook county on or before the second Tuesday of August, 1900. It is provided by section 1, art. 8, c. 122, p. 1555, Hurd's Rev. St. 1899, that ‘for the purpose of establishing and supporting free schools, * * * repairing and improving school houses, * * * and for all other necessary incidental expenses in each district, village or city, anything in any special charter to the contrary notwithstanding, the directors of such district and the authorities of such village or city shall be authorized to levy a tax annually upon all the taxable property of the district, village or city * * * for educational and * * * for building purposes.’ By virtue of this statute the city is authorized to establish and support free schools, and for such purposes may levy a tax for educational and building purposes; and the statute having provided for a tax levy for ‘educational purposes' and ‘building purposes,’ and the appropriation and tax levy ordinances each having substantially specified the purposes for which the school tax in question was to be used, in the language of the statute, viz., ‘educational purposes' and ‘building purposes,’ we think said ordinances sufficiently definite in that particular.

It is further contended that, the tax levy for educational purposes being more than 2 per cent. of the taxable property of the city of Chicago as equalized by the state board of equalization for the year 1900, such excesscannot be collected; and in support of such contention it is said the various attempts of the legislature to amend the law increasing the right of taxation, for which a tax levy for educational purposes may be made, from 2 to 2 1/2 per cent., are illegal, and therefore a tax for educational purposes for more than 2 per cent. cannot be levied. By section 1 of article 8 of ‘An act to establish and maintain a system of free schools,’ approved and in force May 21, 1889, a tax levy of 2 per cent. for educational and 3 per cent. for building purposes was authorized. On February 24, 1898, at a special session of the legislature (Laws 1898, p. 54), an act was passed entitled ‘An act to amend an act entitled ‘An act to establish and maintain a system of free schools,’ approved and in force May 21, 1889.' Section 1 of said act reads as follows: ...