People ex rel. Gibbons v. Clark

• Decision Date: 04 February 1921
• Docket Number: No. 13581.,13581.
• Parties: PEOPLE ex rel. GIBBONS, County Collector, v. CLARK et al.
• Court: Illinois Supreme Court

296 Ill. 46

129 N.E. 583

PEOPLE ex rel. GIBBONS, County Collector,

v.CLARK et al.

No. 13581.

Supreme Court of Illinois.

Dec. 21, 1920.

Rehearing Denied Feb. 4, 1921.

Action by the People, on the relation of Harry R. Gibbons, against M. F. Clark and others. Judgment for plaintiff, and defendants appeal; appellees filing cross-errors by leave of court.

Reversed in part and remanded.Appeal from Cook County Court; S. N. Hoover, Judge.

William M. Lawton, Landon & Holt, Elmer M. Leesman, and John W. Ellis, all of Chicago (William F. Struckmann, of Chicago, of counsel), for appellants.

Maclay Hoyne, State's Atty., and W. W. De Armond, both of Chicago (Samuel A. Ettelson, Corp. Counsel, Hayden N. Bell, Leon Hornstein, Louis J. Behan, Emil C. Wetten, Francis O'Shaughnessy, Roy O. West, and

William Rothmann, all of Chicago, of counsel), for appellee.

THOMPSON, J.

The appellant taxpayers, as defendants in an application by the county collector of Cook county for judgment and order of sale for unpaid taxes for 1919, filed objections to the following items of tax: A supplemental levy made by the board of county commissioners under an amendment to section 61 of the act (Hurd's Rev. St. 1919, c. 34, § 62) relating to counties (Laws of 1919, p. 381); the total levy of the city of Chicago for street cleaning; its total levy for interest on judgments and a part of its levy for the municipal tuberculosis sanitarium; the total levies for the maintenance of West Park, South Park, and Lincoln Park; and the total levies of park maintenance tax for the towns of North Chicago and Lake View. The court overruled all objections except to one item in the municipal tuberculosis sanitarium levy, to which item it sustained the objection. Judgment and order of sale were entered for those taxes to which objections had been overruled, and this appeal followed.

Appellants coutend that that part of the Cook county tax extended on account of a supplemental appropriation and levy under authority of the amendment to section 61 of the County Act is invalid for the reason that the statuteauthorizing the supplemental appropriation and levy was repealed by a second amendment to the same section, which went into effect before the supplemental appropriation bill became effective. The amendment authorizing the suuplemental appropriation was approved and became effective June 23, 1919. It provided:

‘That said board of commissioners may at any time up to and including June 30, 1919, of the fiscal year commencing on the first Monday of December, A. D. 1918, and ending on the Saturday immediately preceding the first Monday of December, A. D. 1919, pass additional and supplemental appropriation bills or resolutions making additional appropriations which may relate back to the commencement of said fiscal year and be additional or supplemental to any item or items in the annual appropriation bill for said fiscal year. Any such additional or supplemental appropriation bills or resolutions shall not take effect until they shall have been once published in a newspaper published in Chicago, and said board of commissioners shall provide for and cause said additional or supplemental appropriation bills or resolutions to be published as .aforesaid. Any appropriations contained in said additional or supplemental appropriation bills or resolutions may be included in the general tax levy for the calender year A. D. 1919, or a subsequent separate tax levy or levies, may be made therefor.’ Laws of 1919, p. 384.

This legislation was secured by the commissioners of Cook county for the express purpose of increasing the salaries of the county employees. June 27 the county board passed the supplemental appropriation bill covering this increase of salaries. The day following the passage of this supplemental appropriation bill, and before its publication, the Legislature again amended section 61 of the County Act and omitted the provision above quoted. Laws of 1919, p. 392. This amendment went into effect July 1, 1919. The supplemental appropriation bill was published july 5, 1919.

[1]Appellee contends that the amendment authorizing the supplemental appropriation has not been repealed and that the supplemental levy is valid. We do not deem it necessary to discuss the merits of this objection, because we consider a decree entered in the superior court of Cook county in Jennings v. County of Cook and Robert M. Sweitzer, County Clerk, as res judicata of all questions raised by this objection. December 3, 1919, Ode D. Jennings, a resident and taxpayer of Cook county, filed a bill in the superior court of Cook county on behalf of himself as a taxpayer and all other taxpayers of Cook county, seeking to enjoin the extension of all taxes appropriated and levied under the additional and supplemental appropriation bill on the same grounds, among others, as are alleged by these objectors in these proceedings. He made the county of Cook and Robert M. Sweitzer, county clerk of Cook county, defendants. December 11, 1919, defendants answered this bill, and December 20 the cause was heard and a decree entered dismissing the bill for want of equity. An appeal was prayed and allowed but was never perfected.

Where a citizen and taxpayer brings an action on behalf of himself and other taxpayers against a municipality, every citizen is regarded as a party to the proceedings and is bound by the judgment or decree entered therein. In such cases the people are regarded as the real parties. 15 R. C. L. 1035. The general principle has been enunciated that in equity, if bona fide bills are filed and litigated by representatives of a class and the subject-matter of the suit is common to all, the decree binds the entire class as fully as if all were before the court. 24 Am. & Eng. Ency. of Law (2d Ed.) 758. The leading case on this subject is Harmon v. Auditor of Public Accounts, 123 Ill. 122, 13 N. E. 161,5 Am. St. Rep. 502. The question is fully and ably discussed in that opinion, and we do not deem it necessary or expedient to repeat the discussion here. This holding has been approved in Greenberg v. City of Chicago, 256 Ill. 213, 99 N. E. 1039,49 L. R. A. (N. S.) 108, and in Pear v. City of East St. Louis, 273 Ill. 501, 113 N. E. 60. Many courts of last resort have referred with approval to this opinion. The Supreme Court of Wisconsin, citing this case, says:

‘There are many cases where persons do not appear of record by name and cannot be heard directly in the action, yet are deemed parties by representation and are bound by the judgment as effectually as those who stand in court to represent them. In such cases all such parties are deemed to be in privity with those who actually appear of record. * * * A person suing as a taxpayer, in behalf of himself and all persons similarly situated, stands for all such taxpayers, so that a judgment rendered in the action is binding on every taxpayer in the municipality. * * * Each taxpayer is considered as a participant in the litigation closed by the judgment, so that he can neither impeach the judgment collaterally nor relitigate any of the questions decided upon which the judgment was based.’ State v. McDonald, 108 Wis. 8, 84 N. W. 171,81 Am. St. Rep. 878.

The same doctrine was approved in Stallcupp v. City of Tacoma, 13 Wash. 141, 42 Pac. 541,52 Am. St. Rep. 25. In City of El Reno v. Cleveland-Trinidad Paving Co., 25 Okl. 648, 107 Pac. 163,27 L. R. A. (N. S.) 650, it was held that a judgment rendered upon a demurrer to a petition filed by a taxpayer on behalf of himself and all similarly situated is final and conclusive on the facts pleaded until reversed on appeal and is a bar to any subsequent action based on the same facts by another taxpayer. It is not material whether the decree in the Jennings injunction suit was erroneous and would have been reversed on appeal or error. People v. Chicago, Burlington & Quincy Railroad Co., 247 Ill. 340, 93 N. E. 422. That one taxpayer may proceed in equity to restrain the extension or collection of the entire tax is settled in this state by the decision in Knopf v. First Nat. Bank of Chicago, 173 Ill. 331, 50 N. E. 660, where the question is fully discussed and the authorities supporting the holding collected. The proceeding must, of course, be brought in good faith (People v. Chicago, Burlington & Quincy Railroad Co., supra), but there is nothing in this record to indicate that the Jennings suit was not so brought. The objectors were parties to the suit in the superior court by representation, and the decree there is binding upon them. The county court properly overruled the objection to the county tax.

[2][3][4] The appropriation ordinance and the tax levy ordinance of the city of Chicago contain the following:

‘For cleaning of streets, collection and removal of garbage, ashes and miscellaneous refuse, and for the repair of unimproved streets, sidewalks and miscellaneous street work, and for the maintenance and operation of buildings and equipment in connection therewith, $3.510,000.’

The objection to this appropriation and levy is that it is for more than one purpose without designating separately the amount for each purpose. The item occurs in the list of appropriations for the bureau of streets and is found among several items listed under the subhead, ‘Cleaning of streets and alleys, removal of snow, street sweepings, collection and removal of garbage, ashes and miscellaneous waste.’ Considering this item without reference to its associated items, it would appear that the levy was for five or six separate objects and purposes; but, when we examine the whole appropriation for the bureau of streets, it is clear that this levy is for but one purpose, namely, the removal of waste material from the streets and alleys of Chicago. In order to clean the streets it is necessary to collect and remove garbage, ashes, and miscellaneous refuse, and it is quite proper and expedient to use ashes, cinders, and...