Fuller v. City of Chicago

Mr. Justice Walker delivered the opinion of the Court: Appellant, as a tax-payer in the city of Chicago, filed his bill to restrain the city authorities from paying a large number of outstanding certificates of indebtedness issued by the mayor, comptroller, and city clerk. The bill alleges that in the year 1875 the city was indebted beyond the constitutional and statutory limit, but borrowed money and issued these certificates notwithstanding the want of power. The following is the form of these certificates: “ This is to certify that the city of Chicago acknowledges to one John Doe the sum of $1,000, lawful money of the United States of America, which sum the city promises to pay to John Doe, or order,- months after the date hereof (without grace), at the office of the treasurer of the city of Chicago, with interest thereon at the rate of-per cent per annum from-, 1875. “ This loan having been authorized by section 26 of amendments to the city charter, approved February 15, 1865, and by section 7 of the act of the General Assembly of the State of Illinois, amending the city charter, approved April 19, 1869. “In testimony whereof, the mayor and comptroller of the said city have signed, and the clerk countersigned, these presents, and caused the seal of said city to be hereunto affixed, this-day of-, A. D. 1875.” The bill also alleges that in 1877 the city was still largely indebted beyond the constitutional and statutory limits, but notwithstanding such indebtedness, the mayor, comptroller and city clerk borrowed money, and issued other certificates in this form: “ This is to certify that John Doe has advanced to the city of Chicago $1000, lawful money of the United States, to meet that part of the current expenses of the year 1877 for which an appropriation has been made for said year, for the general appropriation fund, and that sum will be paid to John Doe, or order, upon the-day of-, 1878, without grace, at the office of the treasurer of the city of Chicago, with semiannual interest thereon at the rate of six per cent per annum, from date, out of the taxes levied for said fiscal year, said tax levy having been heretofore actually made. “ The treasurer of the city is hereby ordered to make said payment as aforesaid, and charge to general appropriation fund. “ This warrant is issued for an amount not exceeding the appropriation for the above account, and not exceeding the amount of uncollected taxes apportioned to its payment, and which will .be held and applied thereto, all of which is sanctioned by the mayor and finance committee, and duly authorized by law and the ordinance of said city. “ In testimony whereof, the mayor and comptroller of said city have signed, and the clerk countersigned, these presents, and caused the seal of said city to be hereunto affixed the-day of-, A.D. 1877.” It is further alleged that both kinds of certificates were duly signed, attested and delivered. It is alleged that the city, since 1870, when the constitution was adopted and went into force, was indebted in a sum amounting to more than five per cent of the assessed value of the property in the city assessed for taxation ; that the certificates of 1875 were issued on the receipt of moneys which were placed in the city treasury for the purpose of paying, as required, from time to time, the current expenses of the city, and the money was thus borrowed in anticipation of taxes then levied to defray the expenses of the city for the current year. It is alleged that the certificates issued in 1875 amounted to $4,500,000; that $4,000,000 of that sum has been paid, and the city authorities threaten to pay the remainder, although such warrants are illegal and void ; that warrants were issued and drawn on the treasurer in 1877, and on which over three millions of dollars was in like manner borrowed for a similar purpose. The bill alleges that since 1870 the city authorities have thus borrowed at different times money, on like certificates and warrants, to large amounts, and have paid large sums, but that there are outstanding certificates and warrants thus drawn, as appellant believes, $3,000,000 in the aggregate. It is charged that all money thus borrowed since 1870, and jiarticularly that borrowed in 1875 and 1877, was ivithin the prohibition of the constitution and the statutes conferring power on the city, as its debt, at the time such sums were borrowed, exceeded five per cent of the value of the taxable property ascertained by assessment for taxation, and the city had been so indebted at all times since the constitution of 1870 went into operation; that the mayor, comptroller and city clerk are daily drawing warrants on the treasury for the payment of these illegal and void debts, and the city treasurer claims that he has the right to and will pay such warrants, and the county collector claims the right to receive such warrants in payment of city taxes, in conformity to an ordinance authorizing the same. The material allegations of the bill are admitted, but attempted to be avoided. First, it is alleged that under the law, taxes are levied, by the ordinance, in the first quarter of the fiscal year, and are not collected until the last quarter of that, or the first quarter of the next fiscal year ; and it is insisted that the issuing of these" certificates and warrants is only anticipating the taxes thus levied, and that it is necessary, under the present revenue law, to anticipate the revenue in this manner; that the city government can not otherwise be maintained. If this should be admitted to its full extent, still that does not authorize the city authorities to disregard the constitution or their charter, which prohibits them from incurring such indebtedness. It may form a strong argument to the General Assembly to change the revenue laws, to relieve from the difficulty; or for the city, like the State and the counties, to change its financial policy, so as to avoid the difficulty. All cities in the State are acting under the same charter, or, at least, under the same revenue laws, and no difficulties seem to be experienced by them. Nor does the State and the various counties complain of any inconvenience, so far as we have known. Hence this can not form any, the slightest, ground for issuing evidence of indebtedness when the constitutional limit has been reached. The city alleged, and sets up in its answer, that it intends to pay such warrants and certificates out of the appropriation made, and in anticipation of which these various sums in 1875 and 1877 were borrowed, and to meet which they were expended, and such sums are severally payable out of taxes of such years when collected. The city was prohibited from borrowing ■ money in any manner, or for any purpose, when these sums were obtained and these certificates of 1875 and 1877 were issued, as the city had passed the constitutional and charter limit of indebtedness, and they evidence indebtedness, and are therefore unauthorized and void. The warrants do not purport to be drawn on any particular fund, and are absolutely payable without grace on a day named, and bear interest. They have none of the elements of an anticipation of a tax already levied, but they have the forms of indebtedness. Those issued in 1875 state that the sum named in each is borrowed under acts of the General Assembly, referred to, as conferring authority to borrow money by the city. Ho amount of reasoning, it appears to us, can possibly show these warrants to be otherwise than evidence of indebtedness and for borrowed money. The warrants of 1877 are also payable at all events, with interest, and without grace, by the city, on a specified day. It is true, they specify that they are payable out of taxes levied for that fiscal year, stating that the taxes had been levied. They also state that they are issued for an amount not exceeding the appropriation, and not exceeding the amount of uncollected taxes appropriated to their payment, and which will be thus applied. These warrants state they will be paid out of the taxes then levied, but they do not state they are only payable out of those taxes for the fund for which the advance had been made. These recitals we think do not change the legal effect of these instruments. They do not limit the right of the holder to payment out of these taxes, nor could he be so limited by the language of the certificate. If not prohibited by the constitution and the charter, the holder of one of these • over-due warrants could manifestly sue and recover thereon. They purport to be indebtedness, and only indebtedness, and must have been so considered by the persons advancing the money, and the city no doubt regarded it as a loan. Appellees deny that these certificates increased the aggregate indebtedness of the city. We have "seen they were, in form and in substance, the evidence of indebtedness, and being such, they were undeniably evidence of increased indebtedness. This proposition is self-evident. The receipt of the money by the city, and its promise to pay on a specified day, with interest, we have seen constitutes a debt, and this debt of course increases the aggregate indebtedness of the corporation. We presume all persons would call these certificates debts, and could find no other name for them. This conclusion is not only sustained, but it is forced upon us by the cases ' of City of Springfield v. Edwards, 84 Ill. 626, and Law v. The People, 87 Ill. 385. In the latter of these cases the validity of these certificates was before us, and we held them void. In that case the reasons for the conclusion are given at length, and in the former case the effect of the constitution on such instruments was fully considered and announced. We deem it unnecessary to here repeat the reasons given in those cases, but we must hold they control this case in all of its features. In fact, these are the same certificates that were involved in the latter case. We therefore hold these instruments were issued in violation of the constitution and the provisions of the charter of the city, and that both issues are void. . But to avoid the force of this conclusion it is set up, as a defense, that the city only intends to pay them out of the taxes levied for the year in which these advances were made. This can not be held to be an anticipation. To have" that effect, the warrant on the treasurer should be specifically drawn against the uncollected taxes of the particular year and fund to which the money was advanced, and not against the general fund or other funds in the treasury. The city, in its •answer, has set out this as the form of the warrant on the treasurer: “No. —. $ —. Chicago,--, 187-. “ Treasurer of the City of Chicago: Pay to--, or bearer,-dollars, and charge to Department of Public Works appropriation. Countersigned. '--, Mayor. --, Comptroller It will be observed that this warrant is drawn on the treasury generally, and not on any particular fund, although it directs the treasurer to charge it to a fund named. The city can not use the taxes levied for one fund for the expenses of another. It follows, to anticipate the uncollected taxes of either of the funds the warrant must be specifically against, and to be paid out of, the taxes levied for that particular fund. Had these warrants on the treasury been so drawn, then the question would have been presented whether this was an anticipation of the taxes levied for that fund;—whether the tax levied for a specific fund, and not collected, might be anticipated to pay money previously advanced by individuals to meet the expenses of the fund. In other words, treating these certificates of 1875 and 1877 as absolutely void, and as though never issued, may the city draw warrants on the treasurer to pay the principal, without interest, of such advances, payable alone out of the taxes, when collected, for the fund to which the advances were made? The bill charges that the ordinance unlawfully authorizes the collector of taxes to receive the certificates of indebtedness of 1875 and 1877 in payment of city taxes generally. This is the provision of the ordinance, and it is not denied that the collector of taxes intends to and will so receive these certificates. This he has no power to do. Being void, he has no power to receive them in discharge of taxes levied for any purpose, and should be restrained therefrom. It was error in the Superior Court not to enjoin him therefrom, and like error in the Appellate Court in affirming the decree of the Superior Court. On the answer as it now stands, the city should be restrained from drawing warrants on the treasurer in the form given, and there was error in not doing so on the hearing. For these errors the decree of the Appellate Court is reversed, and the cause remanded. Decree reversed.