Sherlock v. the Vill. of Winnetka.

• Decision Date: 30 September 1873
• Citation: 1873 WL 8392,68 Ill. 530
• Parties: JOSEPH SHERLOCK et al.v.THE VILLAGE OF WINNETKA.
• Court: Illinois Supreme Court

68 Ill. 530

1873 WL 8392 (Ill.)

JOSEPH SHERLOCK et al.

v.THE VILLAGE OF WINNETKA.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a bill in chancery, filed by Joseph Sherlock, John Ellis and twenty-four others, tax-payers in the village of Winnetka, Cook county, Illinois, against the village of Winnetka and others, to enjoin the collection of taxes levied to pay interest on certain bonds, the validity of which the bill questioned. The opinion of the court gives the necessary facts of the case.

Messrs. SCOVILLE, CORWIN & BAYLEY, for the appellants.

Mr. J. P. ATWOOD, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This case was before us at a former term, on demurrer, (59 Ill. 389), when the decree was reversed, and the cause remanded, with directions that the court below overrule the demurrer and permit the defendants to answer. On redocketing the case, an answer was filed, a trial had and the bill dismissed, and damages assessed at $350, for the wrongful suing out of the injunction.

On the trial, the proof showed that the corporate authorities of the village purchased the ground described in the bill, at the price stated; that they issued $18,000 of its bonds, in sums of $1,000 each, which were sold between January and April, 1870; the bonds and coupons attached bore date the 1st day of June, 1869, but whether the first coupon falling due was clipped before sale or not, does not appear. These bonds bore ten per cent interest, and were to run ten years before maturing. Three of them were paid to Wilson, of whom the property was purchased, at par, but the other fifteen were sold at nine-five cents on the dollar. That three of the bonds were sold to Wright, one of the members of the council, at the same rate of discount. That the money arising from the sale of these bonds was applied, $2,500 to the purchase of the ground, and the balance to erecting a building thereon for educational purposes, and in furnishing it, and in fencing the ground.

It further appears, that in 1870, the village authorities leased the property to the Winnetka academy, but reserved no rent, and they employed a teacher for a time and maintained a school, charging from ten to twenty dollars per quarter for each scholar; but, being unable to sustain the school, they surrendered their lease about one year from its date. Thereupon the village council leased the property to the University of Chicago, a corporation situated beyond the limits of this district, for the period of five years, but reserved no rent. The university was, however, bound to keep a school of a grade sufficiently high to enable students educated by them to enter any college in the country. It was to be open equally to both sexes, and the charges for tuition to be reasonable. They further bound themselves to board students, not residing in the village, at $3.50 per week. The university took possession under the lease, opened a school, and are charging from ten to thirteen dollars per quarter for tuition of each student, and no exception is made in favor of students residing in the village.

About the first day of July, 1870, the village council issued and sold at the same discount, eight more bonds of $1,000 each, bearing the same rate of interest. With the proceeds a boarding house and dormitory were erected on the ground first purchased, at a cost of between $6,000 and $7,000, and one of these bonds was taken up and cancelled, leaving now outstanding $25,000 of these bonds. The boarding house and dormitory were included in the lease to the university. The village authorities have maintained a common school in the village, employing a female teacher, but have never established a graded school for the use of the inhabitants of the district. The evidence shows that the amount of the tax charged was levied for the payment of the interest; that the reduction was made in the assessment as charged.

The facts disclosed by the answer and proofs raise some questions which were not discussed in the opinion announced when the case was previously before us.

There is no proof that the abatement from the amount of the assessment of the property of the railroad and Goss, was not on property exempt from taxation. If it had appeared that the deduction was on property liable to taxation, then the action of the village council would have been unauthorized and an abuse of power. The constitution provides that taxes shall be levied on a valuation on property, so that it shall be in proportion to the value of property owned by each person, the value to be ascertained by some person or persons, to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise. Now, under the charter in this case, the assessor is required to be elected by the voters of the village. And when he was elected, he, and he alone, had the sole power to ascertain and fix the value of the property therein for taxation. He has conferred upon him the same powers as have township and county assessors. But no power of review or re-assessment is conferred upon the village council. They are neither elected nor appointed to value the property, nor to alter, change or correct the assessment made by the village assessor. He is the constitutional officer to make the valuation, and under this charter it can be made alone by him, and not otherwise.

The 9th section of article nine of the constitution, in authorizing taxes to be laid and collected by municipal corporations, provides that such taxes shall be uniform in respect to persons and property within the jurisdiction imposing the same. To secure that uniformity, two things are essential: First, the assessments shall be just and equal, in proportion to the value of the property liable to assessment; and, secondly, when thus assessed, the rate shall be uniform as to every person, and on every species of property returned by the assessor for taxation. And the constitution intends that the uniform value shall be ascertained by one officer,--the uniform rate imposed by a different set of officers, or a different person. If the abatement of the assessment was from property liable to taxation, then there was a palpable violation of duty by the village council, as no such power is conferred upon them by the General Assembly, nor could they supply the want of power by ordinance. That could only be done by the General Assembly, the source of power, when not restricted by the constitution.

If this property was liable to taxation, then the council destroyed the equality and uniformity of the assessment made by the assessor, and this too without the semblance of authority or legal power. And such a reduction would, no doubt, authorize the tax-payers to enforce their rights by legal remedies against the village council, to the extent each tax-payer was injured by the change. But, if it was clearly an abatement on property not liable to taxation, then they had the power to direct that the tax should not be extended against such exempt property. But a deduction, although flagrantly wrong and unauthorized, would not be ground for holding the entire assessment invalid. The objection that the bonds are...