Riverside Co. v. Howell

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 Eiverside 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 Shawnee-town 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 appropria- . tions 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 ordinance as a limitation upon the power of the city council to levy the tax. The failure to pass such ordinance is not a mere formal defect, and so is not cured by section 191 of the Revenue law, (Rev. Stat. 1874, p. 890,) that “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof.” (See The People v. Otis, 74 Ill. 384; The People v. Lee, 112 id. 113.) The want of an appropriation ordinance we look upon as a defect in the proceedings which makes the city tax illegal,—which surely affects the substantial justice of the tax. See Cooley’s Const. Lim. 520; Prindle v. Campbell, 9 Minn. 212. In Wilmerton v. Phillips, 103 Ill. 78, we said: “Purchasers at tax sales, while availing themselves of the opportunity of obtaining highly remunerative profits on small investments, are bound to know, at their peril, when purchasing at a tax sale, that the supposed delinquent is in truth and in fact a delinquent,—that he has been lawfully assessed, and has failed to make payment.” Some question is made as to the sufficiency of the proof that there was no appropriation ordinance passed. The testimony of the city clerk, who produced the ordinance record and the journal of the city council, was, in addition to the showing of the books, that no appropriation bill or ordinance was passed by the city council in either of the years 1875 or 1876. The proof is satisfactory to us that there was no such ordinance passed. We therefore hold the city taxes for the years 1875 and 1876 to be invalid, and that therefore the tax sale was void, and no title passed under it. The authorities are to the effect that when a part of the tax for which a sale of real estate is made, is illegal, the sale is void. McLaughlin v. Thompson, 55 Ill. 249; Kemper v. McClelland’s Lessee, 19 Ohio, 308; Gamble v. Witty, 55 Miss. 26; Cooley on Taxation, 295, 296; Hardenburgh v. Kidd, 10 Cal. 402. The tax sale being adjudged void and the tax deed invalid, upon the foregoing ground, it is unnecessary to consider other objections which have been taken to the validity of the tax deed. It is insisted that the tax judgment should be held conclusive against the objection which has been considered, and not subject to attack in this collateral proceeding, and we are asked to revie.w and change our former holding to the contrary, where the tax judgment is by default, in the cases of Graceland Cemetery Co. v. The People, 92 Ill. 619, Belleville Nail Co. v. The People, 98 id. 399, Gage v. Bailey, 102 id. 12, and Stamposki v. Stanley, 109 id. 210, supposed by counsel to be in conflict with the line of decisions in The People v. Brislin, 80 Ill. 423, Lehmer v. The People, id. 601, Prout v. The People, 83 id. 154, Chicago and Northwestern Ry. Co. v. The People, id. 467, Andrews v. The People, id. 529, and Gage v. Parker, 103 id. 535. The case of The People v. Brislin, which the others followed, was one of the confirmation of a special assessment for park purposes. Not one of these cases referred to arose upon a judgment ordering sale of land for taxes, but they all related to the conclusiveness of confirmations of special assessments made under either section 3, chapter 105, of the Bevised Statutes of 1874, entitled “Parks,” or article 9, chapter 24, of the Bevised Statutes of 1874, entitled “Cities, Villages and Towns.” These confirmations of the assessments under section 3 of chapter 105, are in the circuit court, and are expressly declared by the act to be conclusive ; and under the 9th article of the City and Village law, they are made in the county court after full and proper notice of the proceedings to the owner of the property. Such confirmations of assessments are, in our opinion, to be viewed differently from a judgment to sell real property for the taxes due thereon. In carrying out the powers given cities, etc., by section 9, of article 9, of the constitution, of making local improvements by special assessments on contiguous property, these confirmations of the assessments may be regarded like that of the valuation of property by the proper officer in ordinary cases of assessment, and if the property owner fails to make his objections in the proper place, and the assessment is confirmed, then he may well not be permitted to go behind the confirmation in urging objections, when proceeding is taken for enforcing the payment of such special assessments. In the decision against the conclusive effect of tax judgments by default, somewhat of stress was laid upon the recognition by the statute, itself, of such judgments not having the conclusiveness of ordinary judgments by default. This consideration could not apply in the special assessment cases. We see no sufficient reason for changing our former holding upon this point, as to a judgment by default in a tax sale proceeding not being conclusive, and we adhere thereto. The judgment of the court below will be reversed, and the cause remanded for further proceedings. Judgment reversed.