People ex rel. Larson v. Thompson

• Decision Date: 17 June 1941
• Docket Number: No. 26105.,26105.
• Citation: 35 N.E.2d 355,377 Ill. 104
• Parties: PEOPLE ex rel. LARSON, County Collector, v. THOMPSON et al.
• Court: Illinois Supreme Court

377 Ill. 104

35 N.E.2d 355

PEOPLE ex rel. LARSON, County Collector,

v.THOMPSON et al.

No. 26105.

Supreme Court of Illinois.

June 17, 1941.

Proceeding by the people, on the relation of Oscar N. Larson, county collector, against Charles M. Thompson, trustee, and others for the collection of delinquent taxes. From an adverse decision the trustee and others appeal.

Affirmed in part, reversed in part and remanded with directions.Appeal from DeKalb County Court; Harry W. McEwen, Judge.

Lowell B. Smith, of Sycamore, and Nelson Trottman, of Chicago, for appellants.

Ross E. Millet, of Sycamore, and Clark H. Countryman, of DeKalb, for appellee.

SMITH, Justice.

This is an appeal from an order and judgment of the county court of DeKalb county overruling objections of appellants to judgment for delinquent taxes. The taxes involved are taxes extended for the DeKalb County Forest Preserve District, the Waterman Community Fire Protection District and five separate school districts.

The objection to the taxes extended for the DeKalb County Forest Preserve District is that no appropriation ordinance adopted by the board of commissioners of said district was in force at the time the levy ordinance was passed.

The record shows that the board of commissioners of the DeKalb County Forest Preserve District passed an appropriation ordinance on July 18, 1939. In this ordinance there was appropriated for seven designated items, or purposes, the sum of $18,000, in the aggregate. This ordinance was not published until September 8, 1939. The tax levy ordinance purporting to levy $18,000 for the specific purposes named in the appropriation ordinance was passed September 15, 1939. The specific objection is that the appropriation ordinance, not having been published within ten days after its passage, and ten days not having elapsed between the actual publication of that ordinance and the date the levy ordinance was passed, the appropriation ordinance was not in force at the time the levy ordinance was passed.

The DeKalb County Forest Preserve District was organized under the Forestry Act of June 27, 1913. Ill.Rev.Stat.1939, chap. 57 1/2. Section 11 of that act provides that all ordinances imposing any fine, or penalty, or making any appropriation of money shall, within ten days after their passage, be published at least once in some newspaper published in such district, or having a general circulation therein, and that no such ordinance shall take effect until ten days after it is so published. Ill.Rev.Stat.1939, chap. 57 1/2, par. 12. All other ordinances and all orders or resolutions take effect from and after their passage, unless otherwise provided therein.

It is first contended by appellants that the failure to publish the appropriation ordinance within ten days from the date of its passage renders the appropriation ordinance void and that it never became effective. It is further contended that even though the publication of the appropriation ordinance on September 8, 1939, constituted a compliance with the above statute, that said appropriation ordinance did not become effective until ten days after it was published; that the levy ordinance, having been passed on September 15, 1939, and within ten days of the publication of the appropriation ordinance, the appropriation ordinance was not in force at the time the levy ordinance was passed, and that the taxes levied and extended are void for that reason. It is the contention of appellee that the above provision of the statute providing for the publication of the appropriationordinance within ten days after its passage is merely directory, and that the ordinance may be published at any time after its passage without affecting its validity when so published. In support of this contention appellee cites and relies upon Whalin v. City of Macomb, 76 Ill. 49, and People v. Donaldson, 255 Ill. 19, 99 N.E. 62, Ann.Cas.1913D, 90.

The case of Whalin v. City of Macomb, supra, was a prosecution for the violation of a city ordinance of the city of Macomb. The city of Macomb was organized under a special act of the legislature. That act provided that the city officers should publish a digest of its ordinances within one year after the grant of the charter, and every five years thereafter. There had not been published a digest of city ordinances within five years prior to the time the ordinance there involved was passed. It was not provided in the charter that an ordinance of the city should not become effective until it was published, nor that the ordinances should be void if not thus published. This court held that the provision of the charter requiring a digest of the ordinances to be published every five years was directory, and that the failure to publish such digect did not affect the validity of the ordinances passed more than five years after the last publication of the digest. This court there applied the well-known common law rule that where a statute specifies the time within which a public officer is to perform an official act affecting the rights and duties of others, it will be considered as directory, merely, unless the nature of the act to be performed, or the language used by the legislature, shows that the designation of the time was intended as a limitation on the power of the officer to act.

The case of People v. Donaldson, supra, involved the legality of a grand jury, selected within twenty days before the first day of the term of court at which such grand jury was to serve. In that case the grand jury was selected only nineteen days before the first day of the term of court at which it was to serve. There was a motion to quash the indictment based on that ground. This court, citing Whalin v. City of Macomb, supra, held that the provision requiring the grand jury to be selected twenty days before the first day of the term was merely directory. It will be noted that the question involved in those cases was not at all similar to the question here involved. Those cases are not in point.

Section 13 of the Forestry Act provides that all general taxes levied by the commissioners of any forest preserve district, shall be levied annually in the same manner as taxes are levied for city and village purposes. In our opinion the provision of section 11 of the Forestry Act requiring that an appropriation ordinance be published within ten days after its passage is merely directory, that if such ordinance is not published within ten days it may be thereafter published and will become effective ten days after the date of publication. This holding is in harmony with the common law rule above referred to and which rule has been many times approved by this court.

The objection, however, to the legality of the levy ordinance passed within ten days from the date of the publication of the appropriation ordinance presents a more serious question. Section 11 of the act expressly provides that no ordinance making any appropriation of money shall take effect until ten days after it is published. If the above language of said section 13, providing that taxes shall be levied in the same manner as taxes are levied for city and village purposes, means that the appropriation propriation ordinance must actually be in force before the levy ordinance is passed, the levy ordinance in this case cannot be sustained, because it was passed within ten days from the date of the publication of the appropriation ordinance. In order to ascertain the manner in which taxes are levied for city and village purposes, we are referred, by the act itself, to the Cities and Villages Act. Section 2 of the article 7 of the Cities and Villages Act, which is paragraph 101 of chapter 24 of our statutes, provides that the city council of cities and the board of trustees of villages shall, within the first quarter of each fiscal year, pass an annual appropriation ordinance. Ill.Rev.Stat.1939, chap. 24, par. 101. Paragraph 123 of the same chapter provides that the city council, or board of trustees, shall annually, on or before the third Tuesday in September, ascertain the total amount of appropriations for all corporate purposes legally made and to be collected from the tax levy of the fiscal year, and by an ordinance shall levy the amount so ascertained upon the property, subject to taxation within the city or village. Paragraph 76 of the same chapter provides, inter alia, that all ordinances of cities and villages making any appropriation shall, within one month after they are passed, be published at least once in a newspaper published in the city or village, and that no such ordinance shall take effect until ten days after it is so published.

By section 13 of the Forestry Act the legislature conferred upon forest preserve districts organized under said act the power to levy taxes. The power thus granted was to levy taxes ‘in the same manner as taxes are levied for city and village purposes.’ By that language it is obvious that the legislature intended to confer upon forest preserve districts the same power to levy taxes which was conferred upon cities and villages by the act governing those municipalities and no greater.

We have repeatedly held that cities and villages have no power to pass an ordinance levying taxes unless it has theretofore passed an appropriation ordinance, which appropriation ordinance is in force at the time the levy ordinance is passed. By the express language of the statute, the corporate authorities of cities and villages have no power to pass an ordinance levying taxes unless there is an appropriation ordinance in force. Under the Cities and Villages Act, an appropriation ordinance does not become effective until ten days after its publication, as provided in said act. By section 11 of the Forestry Act an appropriation ordinance of a forest preserve district likewise does not become effective until ten days after its publication.

In People v. Wabash Railway Co., 360 Ill. 173, 195 N.E. 665...