People ex rel. Toman v. Chicago Heights Terminal Transfer R. Co.

• Decision Date: 18 February 1941
• Docket Number: No. 26006.,26006.
• Citation: 32 N.E.2d 161,375 Ill. 590
• Parties: PEOPLE ex rel. TOMAN, County Collector, v. CHICAGO HEIGHTS TERMINAL TRANSFER R. CO.
• Court: Illinois Supreme Court

375 Ill. 590

32 N.E.2d 161

PEOPLE ex rel. TOMAN, County Collector,

v.CHICAGO HEIGHTS TERMINAL TRANSFER R. CO.

No. 26006.

Supreme Court of Illinois.

Feb. 18, 1941.

Proceeding in the matter of the application by the People, on the relation of John Toman, County Collector, for a judgment against and an order for sale of realty for nonpayment of taxes, wherein the Chicago Heights Terminal Transfer Railroad Company interposed objections. From a judgment sustaining the objections and ordering refund of excess amount of taxes paid, the collector appeals.

Affirmed.Appeal from Cook County Court, Edmund K. Jarecki, Judge.

Thomas J. Courtney, State's Atty., Marshall V. Kearney, Jacob Shamberg, and Bredan Q. O'Brien, all of Chicago (Edwin B. Poorman, of Chicago Heights, of counsel), for appellant.

Robert N. Nolt, of Chicago, for appellee.

WILSON, Justice.

Bloom Township High School District No. 206, in Cook and Will counties, levied $172,173 for educational purposes for the year 1938, and a rate of $1.26 on each $100 of the assessed valuation of the taxable property in the district located in Cook county was extended by the county clerk of Cook county. The defendant, the Chicago Heights Terminal Transfer Railroad Company, the owner of property in Cook county, paid its taxes in full, under protest. Thereafter, when the relator, the county collector, applied for a judgment against and an order for the sale of real estate for the non-payment of taxes for the year 1938, the defendant interposed objections to the levy on the ground that the tax rate for educational purposes was extended in an amount exceeding one per cent without a proposition for the assent thereto having been presented to and approved by the voters of the district and, that, in consequence the rate was excessive and void to the extent of twenty-six cents. The county court of Cook county sustained the objections and ordered a refund of the excess amount paid by the defendant. From that judgment, the collector prosecutes this appeal.

Bloom Township High School District No. 206, which has now and always has had a population of between 1000 and 100,000, was organized under ‘An act to establish and maintain a system of free schools.’ Ill.Rev.Stat.1939, chap. 122, p. 2855. At the time the objections were filed, the tax rate prescribed by section 189 of the School law for educational purposes for such school district was one per cent without a referendum and one and one-half per cent after the proposition for the assent thereto had been submitted to and approved by the voters. May 22, 1937, the electors of school district No. 206 rejected, by an adverse vote of 1520 to 212, the proposition of increasing the tax rate for educational purposes from one to one and one-half percent. Admitting that the election in 1937 did not confer authority to levy a rate in excess of one per cent, the collector, to sustain the levy, contends that an election on April 9, 1921, empowered the board of education of the school district to levy up to the maximum referendum rate of two per cent for educational purposes then permitted by section 189 of the School law; that this authority continued in force through the numerous amendments to section 189 since 1921, and, accordingly, that the board was authorized, in 1938, to levy up to the then maximum referendum rate of one and one-half per cent for educational purposes, irrespective of the defeat of the proposition to increase the rate from one to one and one-half per cent at the election in 1937 and despite the fact that the board, during the years 1921 to 1937, inclusive, did not levy an amount in excess of the varying basic rate for educational purposes. On the other hand, the defendant assails the proceedings of the board of education incident to the 1921 election, insists that they did not authorize an election to vote upon an increase of rates, and that the amendments to the 1921 proceedings made during the pendency of this proceeding are a nullity. The determination of the issue thus made requires a review of the facts and circumstances attending the 1921 election.

In March and April, 1921, section 189 of the School law provided that if the directors or the board of education desired to levy more than one and one-third per cent, but not more than two per cent for educational purposes, ‘such directors or board may, by resolution stating the percentages so desired, cause a proposition for an assent thereto to be submitted to the voters of such district at any general or school election or at a special election called for such purpose, and if at such election a majority of the votes cast on said proposition shall be in favor thereof, the directors of the board of education of such district may thereafter until such authority is revoked in like manner, levy or cause to be levied annually for educational purposes a tax in excess of one and one-third per cent but not exceeding the percentage mentioned in said proposition.’ Laws of 1919, p. 856. The record of the proceedings of the board of education shows that at its meeting on March 10, 1921, it voted to submit to the electors of the district, ‘the privilege of increasing our levy to the additional two-thirds of one per cent, as allowed by the School law of Illinois.’ So far as pertinent to this inquiry, the action of the board, as reflected in the minutes of the meeting, is as follows: ‘Mr. Macke moved and Mr. Angus seconded that we, at the regular yearly election, submit to the voters of Bloom Township High School, District No. 206, the privilege of increasing our levy to the additional two-thirds of one per cent, as allowed by the School Law of Illinois. Sec. 1, Article 189-Act approved June 12, 1909. On roll-call the following voted Yea: ‘Pres. Gunn, Mr. Wallace, Mr. Macke, Mrs. Michalek and Mr. Angus. Motion carried’. The record of this meeting, it will be observed, did not contain a resolution, as prescribed by section 189, and neither it nor the record of any subsequent meeting contained a copy of the notice of election. A photostatic copy which was preserved recites that an election will be held on April 9, 1921, for the purpose of electing two members of the board of education and, also, ‘for the purpose of voting for or against the proposition to authorize the Board of Education to levy the additional two-thirds of one per cent as provided by law, for Educational purposes.’ The minutes of the meeting held on March 10, 1921, were approved at a meeting of the board on the following April 14. From the record of this meeting it appears that a canvass of the returns of the high school election held April 9, 1921, showed that 111 votes were cast in favor of and 14 votes against the ‘privilege of levying additional 2/3 of 1%.’ The canvass was approved, as reported. Shortly after the election in 1921, section 189 of the School law was amended by an act approved June 27, 1921, effective July 1, 1921. Laws of 1921, p. 818. By the amendment, the board of education of the district was authorized to levy annually a tax not to exceed two per cent for educational purposes, and, upon a favorable vote of the legal voters of the district, to levy a tax not to exceed three per cent for educational purposes. When the levy for educational purposes for the year 1921 was made, section 189, it thus appears, empowered the board of education to levy a tax for educational purposes up to two per cent of the assessed valuation, without a referendum. In any event, the board, it is conceded, did not certify the result of the election to the county clerk until May 27, 1938, and did not resort to the rate claimed to have been approved by the election until the levy for educational purposes for 1938 was made. Amendments to section 189 in 1923 and 1925 did not change the provisions relevant to the present action. In 1927, the General Assembly changed the basis of assessed valuation of property from one-half of full value to full value. Laws of 1927, p. 745. As the result of an act amending section 189 of the School law, approved the same day, July 7, 1927, Laws of 1927, p. 824, the tax rate of school district No. 206 for educational purposes was correspondingly reduced to one per cent without, and to a maximum of one and one-half per cent after, a referendum. The rates under...