The Riverside Co. v. Howell

• Decision Date: 24 March 1885
• Citation: 113 Ill. 256
• Parties: THE RIVERSIDE COMPANYv.WILLIAM A. HOWELL.
• Court: Illinois Supreme Court

113 Ill. 256

THE RIVERSIDE COMPANY

v.WILLIAM A. HOWELL.

Supreme Court of Illinois.

Filed at Mt. Vernon Mar. 24, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Gallatin county; the Hon. WILLIAM C. JONES, Judge, presiding.

Mr. E. B. GREEN, and Mr. CARL ROEDEL, for the appellant:

Where a part of a tax for which a sale of real estate is made, is illegal, the sale is void, and no title passes. McLaughlin v. Thompson, 55 Ill. 249; Kemper v. McClelland, 19 Ohio, 308; Gamble v. Witty, 55 Miss. 26; Dogan v. Griffin, 51 Id. 780.

Section 89, article 7, of the Revised Statutes of 1874, relating to cities, etc., requires the passage of the annual appropriation ordinance during the first quarter of each fiscal year, in which shall be appropriated such sum or sums of money as may be deemed necessary to defray all expenses and liabilities of the corporation, specifying the objects and purposes of each appropriation, and the amount thereof. Section 64 requires such ordinance to be published within one month after its passage. Section 111 authorizes the city council, on or before the second Tuesday in September (August) in each year, to ascertain the total amount of appropriations for all corporate purposes, legally made, and, by ordinance, levy and assess such amount, etc. A certified copy of such ordinance is to be filed with the county clerk.

The record of the ordinance levying taxes for 1875 fails to show that the yeas and nays were taken upon its passage, as required by section 41 of the Revised Statutes. This disregard of the provision of the statute renders the assessment of city taxes in 1875 void. Steckert v. City of East Saginaw, 22 Mich. 104; Spangler v. Jacoby, 14 Ill. 297; 1 Dillon on Mun. Corp. (3d ed.) 303.

The failure to pass the appropriation ordinances in 1875 and 1876 is also fatal. The power to levy taxes was limited to the amount of appropriations legally made. The donee of the power should be held to a strict execution of authority, because of the liability of the power to abuse. Cooley on Taxation, 212.

All statutes which, expressly or by implication, limit the amount of taxes which may be levied, are mandatory. Cooley on Taxation, 295; French v. Edwards, 13 Wall. 507.

The statute declares that all ordinances involving an appropriation of money, shall be published. This makes it mandatory. Cooley on Taxation, 218.

These omissions are not merely formal, and cured by section 191 of the Revenue act. People v. Miller, 74 Ill. 384; Hamilton v. Fond Du Lac, 25 Wis. 490; Prindle v. Campbell, 9 Minn. 212.

Mr. R. W. TOWNSEND, and Mr. T. M. ECKLEY, for the appellee:

The judgment of the county court is conclusive as to all matters that could and ought to have been passed upon in rendering it. If it included too much taxes, or illegal taxes, it was but an error to be taken advantage of only by appeal or writ of error. Keeve v. Kennedy, 43 Cal. 653; Hahn v. Kelley, 34 Id. 391; Murdock v. DeVries, 37 Id. 528; Mayo v. Foley, 40 Id. 283; Blackwell on Tax Titles, 221; Moore v. Wayman, 107 Ill. 192; Gage v. Parker, 103 Id. 535; People v. Brislin, 80 Id. 423; Lehmer v. People, Id. 601; Prout v. People, 83 Id. 154; Railway Co. v. People, Id. 463; Andrews v. People, Id. 529; Schertz v. People, 105 Id. 32; Blake v. People, 109 Id. 504; Ward v. Farwell, 97 Id. 619; Monroe v. People, 102 Id. 409; Fortman v. Ruggles, 58 Id. 208; Mix v. People, 106 Id. 425; People v. Smith, 94 Id. 226.

The proof fails to show that the appropriation ordinances have not been passed, and it is not necessary that the book of ordinances should show the yeas and nays were taken.

It will be presumed that was done which ought to have been done, until the contrary is shown. Lattin v. Smith, Breese, 362.

But if no appropriation ordinance was passed, it could not affect the tax title. It does not go to the substantial justice of the tax, and the omission is cured by section 191 of the Revenue act. Raley v. Guinn, 76 Mo. 273; Mills v. Gleason, 11 Wis. 497. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, for the recovery of a part of lots 1143 and 1144, in Shawneetown. Verdict and judgment were for the defendant, and the plaintiff appealed.

The defendant's claim of title was under a tax deed, and the question presented for determination is upon the validity of such tax deed.

In 1875, lot 1143 entire, and lot 1144 entire, were separately listed to Henry O. Doeker, and various taxes were extended against them on the tax books of 1875. These taxes not being paid, the lots were returned as delinquent, in 1876, and in October of that year lot 1143 entire was forfeited to the State for $321.33, and lot 1144 entire for $608.88. In 1876, “E. pt. lot 1143,” and ““E. pt. lot 1144,” were listed to the Riverside Company, the plaintiff. Against “E. pt. lot 1143” were extended, on the collector's books, city tax of Shawneetown for 1876, $54.41, and back tax and interest for 1875, $352.48, being the total tax charged on lot 1143 entire, for 1875, with interest. Against “E. pt. lot 1144” were extended, on books of that year, (1876,) city tax, $163.23, and back tax and interest for 1875, $663.83, being the total tax charged on lot 1144 entire, for 1875, with interest. These taxes not being paid, the said parts of the lots were returned as delinquent, in 1877, and there was a judgment against and sale of “E. pt. lot 1143,” and “E. pt. lot 1144,” for such taxes. The tax deed is under this sale. The taxes for which the tax sale was made, embraced the city taxes of Shawneetown for the years 1875 and 1876.

It is objected to these city taxes that they were illegal and void because there had been no appropriation bill or ordinance passed by the city council, as required by the statute. The city of Shawneetown became organized under the general law of this State for the incorporation of cities and villages, on May 23, 1874. The fiscal year commenced on the third Tuesday of April. (Rev. Stat. 1874, chap. 24, sec. 48, p. 216; sec. 88, p. 227.) Section 2, of article 7, of that law, (Rev. Stat. 1874, p. 227,) provides: “The city council of cities * * * shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. No further appropriations shall be made at any other time within such fiscal year, unless the proposition to make each appropriation has been first sanctioned by a majority of the legal voters of such city, either by a petition signed by them, or at a general or special election, duly called therefor.” Section 3, article 5, page 223, provides that “all ordinances * * * making any appropriation, shall, within one month after they are passed, be published at least once, in a newspaper published in the city,” etc. Section 90, page 227, provides that neither the city council nor the board of trustees shall add to corporation expenditures in any one year, anything over and above the amount provided for in the annual appropriation bill of that year, except that by a two-thirds vote of the city council or board of trustees any improvement may be ordered the necessity of which is caused by any casualty or accident happening after such annual appropriation is made. Section 1, article 8, page 231, provides: “The city council * * * may assess and collect taxes for corporate purposes, in the following manner: The city council * * * shall, on or before the second Tuesday in September (August) in each year, ascertain the total amount of appropriations for all corporate purposes, legally made, and to be collected from the tax levy of that fiscal year, and, by ordinance, levy and assess such amount, so ascertained, upon the real and personal property within the city, * * * subject to taxation, as the same is assessed for State and county purposes,” etc.

It will thus be seen that there is here, in the interest of the tax-payer, most careful provision made against extravagance of expenditure and abuse of the power of taxation. There is to be passed, within the first quarter of each fiscal year, the annual appropriation bill, wherein is to be appropriated such money as may be deemed necessary for all expenses and liabilities of the corporation, specifying the objects and purposes of the appropriations, and the amount for each object and purpose, which is to be published; and no further appropriation shall be made at any other time within the fiscal year, except upon the sanction of a majority of the legal voters of the municipality. There is to be no addition to expenditures, in any one year, of anything over and above the amount of the annual appropriation bill, except in a specified contingency. The power given to the city council to levy taxes is with a restriction as to the manner in which the power is to be exercised,-- that the city council shall ascertain the total amount of appropriations legally made, and, by ordinance, levy and assess such amount so ascertained. The act requires the annual appropriations to be first made within the first quarter of the fiscal year, and their amount to be ascertained, and then that the levy and assessment should be made, by ordinance, for the amount. These requirements of the statute we regard as for the protection of the citizen, and not directory, but mandatory. The power of the taxing authority, in such a case, is limited by the manner and conditions prescribed for its exercise. ( French v. Edwards, 13 Wall. 507.) The donee of such power should be held to a strict execution of the authority, because of the liability of the power to abuse. (Cooley on Taxation, 212.) We view the requisite of the appropriation...