Prince v. City of Quincy

• Decision Date: 14 May 1889
• Citation: 128 Ill. 443,21 N.E. 768
• Parties: PRINCE v. CITY OF QUINCY.
• Court: Illinois Supreme Court

128 Ill. 443

21 N.E. 768

PRINCE

v.CITY OF QUINCY.¹

Supreme Court of Illinois.

May 14, 1889.

Appeal from appellate court, Third district.

Action on the case by Edward Prince against the city of Quincy. Plaintiff appeals from a decision of the appellate court which affirms a judgment sustaining a demurrer to his declaration.

Wm. McFadon, for appellant.

George A. Anderson and Carter & Govert, for appellee.

PER CURIAM.

This case originated in the circuit court of Adams county, and was there determined adversely to appellant on a general and special demurrer to his declaration. He appealed to the appellate court, where the judgment of the curcuit court was affirmed, and he now brings the record to this court. The following opinion was rendered in the appellate court for the Third district, by PLEASANTS, J.:

‘This was an action on the case, brought by the appellant against appellee. The declaration contained eleven counts. A demurrer, general and special, to the whole declaration, and to each count thereof, was sustained, and, the plaintiff abiding, a judgment of nil capiat and for costs was rendered against him, from which he took this appeal. The question is upon the sufficiency of this declaration. In the first count it is alleged that the defendant was incorporated by special act, which empowered it, among other things, to appropriate money, and provide for the payment of the debt and expenses of the city; that in August, 1873, it passed an ordinance, (set out in hoec verba,) which was duly accepted by plaintiff, and so became a contract between them, whereby plaintiff was to construct, maintain, and keep in operation within the corporate limits of the city a general system of water-works, to be extended and enlarged from time to time as therein prescribed, and the defendant was to pay him, in monthly installments, from the time water should be turned on, the sum of $2,600 per annum, and also in like manner $200 per annum for each of the first one hundred hydrants, which contract was by its terms to run for a period of thirty years; that the plaintiff fully performed all the things by said contract required of him, and within the time thereby limited for that purpose, and at all times during the fiscal year next mentioned had, and furnished water through, seventy-seven hydrants, on each of which water had been previously turned, and all of which had been located under and pursuant to the provisions of said contract; that the city had a fiscal year of its own, commencing March 31, 1880, and an income and revenue of its own for said year; that at the commencement of said year, and at all times during the same, it was indebted upon its valid bonds, theretofore issued, and then outstanding and unpaid, to the amount of more than $1,700,000, which greatly exceeded five per cent. on the value of all the taxable property within its limits, as ascertained by the last assessment for state and county taxes made before the commencement of said year, or by any assessment therefor made during said year; that by reason thereof plaintiff became and was entitled to payment out of the revenue of said year, and the city council ought to have provided out of the same for the payment to him of the contract rate per hydrant specified in said ordinance; that although the city during said fiscal year received and used the water so furnished through said 77 hydrants, and its income and revenue during said year was ample and sufficient for such payment in full, nevertheless the city council willfully neglected and refused to appropriate the revenue of said year to or provide for the payment of the amounts so due to the plaintiff, but on the contrary permitted said revenue to be dissipated, scattered, and diverted from the payment thereof, by means whereof the revenue of said fiscal year was lost to the plaintiff, and the amount due him for water furnished to the defendant during said year remains unrecovered and unpaid. In this count the duty of the council is alleged to have been to provide for the payment to plaintiff, out of the revenues of the year, the amount of the contract rate for the water furnished during the year. This duty is predicated upon (1) the chartered power of the council to appropriate money and provide for the payment of the debts and expenses of the city; (2) its express contract with plaintiff, performed on his part; (3) its indebtedness, previously and then existing, to the full limit of its constitutional power to contract indebtedness; and (4) its possession of revenue for that year sufficient for such payment. The breach complained of is its refusal so to provide for payment to the plaintiff, and the appropriation of said revenue to other uses; and the damage or injury to the plaintiff alleged is the non-payment of his claim. The other counts, excepting the ninth and eleventh, are in principle and general form the same as the first, the difference being that some relate to the claims for water furnished during the two following years, respectively. Some aver that an actual, though insufficient, appropriation was made for the year therein mentioned, some allege the contract as one implied from the receipt and use of the water to pay the plaintiff quantum meruit, some state the duty as to pay for current expenses pro rata, and some charge the refusal to pay as designed and malicious.

‘It is not proposed to notice all of the many points discussed and authorities cited by counsel, but only two or three which, in the light of our own state decisions, are deemed decisive of the question here presented.

‘At first blush, it would seem that by each of these counts it is sought to charge the city in tort for the simple refusal of its council to pay an indebtedness contracted directly in the face of an express constitutional prohibition, and so to recover as damages the precise amount of that indebtedness, with interest from the time when it become due by the terms of the contract. But counsel, as was to be expected, disclaim a position so clearly untenable. Yet this apparent effect of all the facts alleged is obviated only, if at all, by the introduction into the pleading itself, by inference and as argument, of certain propositions of law touching the effect of the constitutional prohibition upon the contract and claim in question, and the character of the fund called ‘current revenue,’ which are admittedto be essential to the sufficiency of these counts. Those propositions are that the legal effect of the prohibition upon plaintiff's claim was not to make it not payable, but payable only out of current revenue, and that current revenue was a specific fund for its payment; and they raise the questions we purpose mainly to consider. The reasoning in support of them, and which develops the theory of appellant's case more fully, is this: (1) Conceding that appellee had already reached the limit of indebtedness prescribed by section 12, art. 9, of the constitution, the prohibition there contained did not abrogate its charter powers ‘to provide the city with water, and to erect hydrants and pumps in the streets for the convenience of its inhabitants,’ and ‘to appropriate money and provide for the payment of the * * * expenses of the city,’ or any others, but only forbade that in the exercise of these powers it should contract any further indebtedness; (2) that a city so indebted may nevertheless incur current expenses for police service, lighting the streets, water supply, and the like, provided only it does not thereby add to its indebtedness; (3) that to contract for such services, if it can pay for them out of current revenue, is not necessarily to add to its existing indebtedness; (4) that under continuing contracts, therefore, providing for periodical payment, no indebtedness can arise until the service is rendered up to a period for payment, and, if payment is then made, none has been thereby added to that already existing within the meaning of the prohibition; (5) that it being forbidden to contract indebtedness for them directly, or to borrow means of payment, the only resource is the current revenue; (6) that being the only available means of payment, this current revenue is a specific fund for that purpose; (7) that so to apply it is therefore a specific ministerial duty of the council, made all the more clear and binding by its limitation to this means; (8) and that the refusal, neglect, or failure to perform such a duty is a municipal tort.

‘Of this series of propositions we hold the third, fourth, fifth, and sixth, which embrace the two previously stated, to be unsound, and, if they are so, the seventh and eighth are inapplicable. The constitutional provision referred to is that ‘no * * * municipal incorporation shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness'. This language leaves nothing for construction, except to ascertain what it is ‘to become indebted,’ in the sense here intended; for none that could be employed would be more apt to show that, upon all such contract liabilities as are within its purview, this provision operates with only one effect, which is to disallow them. It is too plain for argument that it does not classify them as nonpayable and payable, out of special funds or otherwise, nor change any from being a charge against the city generally into a charge against its current revenue only, but makes them, all alike, absolutely non-payable and void. If, then, the contention of counsel that it so changed the contract and claim here in question is an admission that they were within its purview, it admits away their case; and if the fact that without that provision it would have been an indebtedness...