Town of Thornton v. Winterhoff

• Decision Date: 22 March 1950
• Docket Number: No. 31278,31278
• Citation: 406 Ill. 113,92 N.E.2d 163
• Parties: TOWN OF THORNTON et al. v. WINTERHOFF et al.
• Court: Illinois Supreme Court

Page 163

92 N.E.2d 163

406 Ill. 113

TOWN OF THORNTON et al. v. WINTERHOFF et al.

No. 31278.

Supreme Court of Illinois.

March 22, 1950.

As Modified on Denial of Rehearing

May 15, 1950.

MacLeish, Spray, Price & Underwood, of Chicago (Robert S. Cushman and Joseph A. Dubbs, Chicago, of counsel), for appellants.

O. I. Lewis, and Burke, James & Burke, both of Chicago (Edmund W. Burke, of counsel), for appellees.

GUNN, Justice.

This is a suit brought by three taxpayers on behalf of the town of Thornton and the board of auditors of Thornton Township, Illinois, to recover on an official bond for a breach of duty upon the part of the supervisor of Thornton Township and as ex-officio treasurer of the road and bridge fund thereof, in that it is claimed he improperly paid two anticipation warrants in the aggregate amount of approximately $6,756, drawn against the taxes of 1932, out of taxes other than for that year, and thereby a cause of action has accrued to the township and the people thereof. The cause was referred to a master who reported the testimony and recommended a decree in favor of the plaintiffs. The court sustained exceptions to the master's report and recommendations, and entered a decree dismissing the cause for want of equity.

A motion is made to transfer this cause to the Appellate Court on the ground that the question involved does not authorize a direct appeal to this court. Analyzed in a simple manner, the plaintiffs' claim is that tax money to the extent of $6,756 was improperly paid out, and that a taxpayer has the right to maintain a suit in equity on behalf of himself and other taxpayers against a public officer and his sureties who have improperly expended taxes collective by him. It is not claimed that an individual should recover this money, and if recovery is had it is revenue which belongs to the township and the road and bridge fund of the township.

Under a number of decisions we have held that revenue is involved when some recognized authority of the State, or of some municipality authorized by law, attempts to proceed under the law to collect tax money, and that it is also involved where suit is brought against a city treasurer to collect funds illegally withheld as commissions. It seems to us that the test considered in the cases is whether or not the recovery would belong to the public, or would belong to an individual. In the present case, if recovery of the money claimed to have been illegally expended is had, it will go into the treasury of the town of Thornton. Under similar conditions we have held that direct appeal lies to this court. People ex rel. Schreiner v. Courtney, 380 Ill. 171, 43 N.E.2d 982; People v. Holten, 259 Ill. 219, 102 N.E. 171; Jones v. O'Connell, 266 Ill. 443, 107 N.E. 731. We are satisfied that the appeal properly comes to this court.

The action is in the form of a complaint in chancery, in which three taxpayers, for and on behalf of the township, bring suit against the supervisor and highway commissioner of Thornton Township, and the surety on the bond of the suepervisor and ex-officio treasurer, given for the faithful performance of all of his duties as ex-officio treasurer of the road and bridge fund of the town of Thornton. Briefly, the contention made by appellants is that two anticipation warrants were drawn against the tax levied for the year 1932, one including interest in the sum of $2,200, and the other including interest in the sum of $4,556.50. These warrants were not paid until some years later, the larger item being paid on July 28, 1944, and the other on May 11, 1945. These payments were made upon the order of the board of town auditors.

The complaint charges that when the warrants were paid there were no funds derived from the 1932 road and bridge tax in the hands of the treasurer, or, at the most, something over $200. Plaintiffs arrive at this conclusion by showing that in May, 1942, there was no money whatsoever in the hands of the treasurer derived from the 1932 road and bridge tax, and that until May, 1945, only $217.85 had been collected, so that it was impossible to pay the two warrants out of the actual funds then standing to the credit of the 1932 road and bridge fund in the hands of the treasurer; that since the money was paid for warrants issued against the 1932 road and bridge funds, when there was insufficient money in the hands of the treasurer from that fund, a breach has occurred in the bond given for the faithful performance of the treasurer's duty, which gives rise to a cause of action for the benefit of the town for the entire amount of these warrants so paid.

The defendants, however, established beyond any question that the total collections from the 1932 road and bridge tax, after paying commissions and warrants given in payment of taxes, amounted to the sum of $16,700.66, and that the total amount of warrants drawn against the 1932...