Hodges v. Crowley

Mr. Justice Wilkin delivered the opinion of the court: Several special reasons are alleged against the validity of the tax. A casual reading of the statute shows that its object and purpose is to evade section 12 of article 9 of the constitution of 1870, which prohibits counties from becoming indebted beyond fivfe per cent on the valuation of their taxable property. Its language is in many respects exceedingly vague, if not meaningless. What is meant by one-half per cent? There is no express requirement that the question of issuing anticipation warrants shall be submitted to a vote of the people, and yet it provides that the warrants shall draw interest at not to exceed the rate authorized by the vote taken. By the first part of section 1 the vote is to be on the levy of a tax annually, but subsequent clauses attempt to authorize the commissioners to make the levy for the whole period of ten years, and draw warrants against the aggregate amount of such tax to the amount the levy would produce upon the assessment of the previous year. The requirement in section 4 as to the manner in which the election shall be held is irreconcilable with other parts of the act, and admittedly incapable of being complied with in this and other counties in the State. It seems to contemplate the negotiation and sale of the anticipation warrants without reference to the making of contracts for the performance of the work contemplated,— that is, the building, raising or repairing roads. • We think, however,' giving its various provisions the construction most favorable to the validity of the statute, it clearly contravenes the foregoing section of the constitution, and is therefore invalid. As before indicated, it is a manifest attempt to authorize counties throughout the State, not under township organization, to become indebted beyond the limitation fixed by that section. It cannot be denied'that if the legislature can by an act of this kind authorize counties to levy a tax of one-half per cent (whatever that may mean) for the purpose of repairing, raising or building roads for a period of ten years, it may with equal right authorize the levy of a tax at any greater per cent for any number of years for any other lawful purpose, and thus allow them to contract debts without limit. Of course, the attempt is made to evade the language of the constitution and the construction we have placed upon it, by authorizing the issue of so-called anticipation warrants. It is clear, however, to our minds, that anticipation warrants can not be issued under the provisions of this act against the aggregate amount of the tax for ten years, within the meaning of our decisions, which hold, “that when liabilities are created and appropriations are made which are within the limits of the revenue accruing to meet them, they are not debts, within the meaning of the prohibition of the constitution.” City of Springfield v. Edwards, 84 Ill. 626, and Law v. People ex rel. 87 id. 385. In order to authorize the issuing of warrants upon an appropriation so as to give the transaction the effect contemplated by the foregoing rule, it is a pre-requisite that the tax appropriated upon which the warrants are drawn must at the time be actually levied; and second, that the legal effect of the contract between the corporation and the individual receiving the warrants, made at the time of the appropriation, must be that the appropriation and issuing and accepting of the warrants on the treasury for their payment are such as to prevent any liability on the contract against the corporation. As we said in City of Springfield v. Edwards, supra (p. 633): “The principle, as we understand, is, there is in such case no debt, because one thing is simply given and accepted in exchange for another. When the appropriation is made and the order or warrant on the treasury for its payment is issued and accepted, the transaction is closed on the part of the corporation, leaving no future obligation, either absolute or contingent, upon it whereby its debt may be increased. But until a tax is levied there is nothing in existence which can be exchanged, and an obligation to levy a tax in the future for the benefit of a particular individual necessarily implies the existence of a present debt in favor of the individual, against the corporation, which he is lawfully entitled to have paid by the" levy. If the making of the appropriation and issuing and accepting a warrant for its payment does not have the effect of relieving the corporation of all liability, or, in other words, if it incurs any liability thereby, it must, manifestly, incur, either absolutely or contingently, a debt.” Under section 1 of article 9 of the constitution of this State all taxes must be levied by valuation, the value to be ascertained by some person or persons to be elected or appointed. There cari be no lawful levy of a tax except upon an .assessment, and under our system all assessments are made annually. How can a lawful levy of a tax be made in 1899 for a year ten years in the future? Admittedly the value of the taxable property of Alexander county for each of the years after 1899 is impossible -of ascertainment now. Therefore the mere order of the county commissioners that a levy be made in those future years amounts to nothing as an actual levy of a tax. A tax cannot be said to be levied until it has been extended against assessed taxable property. Moreover, no one can now tell what the amount of the levy will be at the end of ten years, so that warrants may be drawn within that amount. How, then, can it be said that warrants may be drawn upon the taxes for the aggregate amount levied for the whole ten years? This difficulty is recognized by the act itself, and an attempt is made to avoid it by authorizing the issue of anticipation warrants to the amount that the levy would produce based on the assessment of the preceding year upon the taxable property of the county. That is, having ordered a levy of one-half of one per cent upon the taxable property of the county for each of the years from 1899 to 1908, inclusive, the county commissioners of Alexander county may issue anticipation warrants upon that levy to the amount that it would produce based on the assessment of the year 1898. There is no reason for presuming, much less can it be ascertained as a fact, that the assessment for the year 1898 is not greater in amount than for 1899, or will be for each of the remaining nine years. As shown by the report of the State Board of Equalization for the year 1899, the taxable property of this county was greater in .1898 than it was in the year 1899. In the succeeding years the amount may or may not be so increased that the levy for the whole ten years will be sufficient to pay anticipation warrants based on the assessment of 1898. Whether that will be so or not is wholly uncertain. To say, if it proves insufficient the loss must fall upon the holders of the warrants does not meet the question here, which is whether anticipation warrants can be lawfully drawn upon a levy the amount of which cannot be ascertained, so as to relieve the transaction on the part of the county of the character of “becoming indebted” beyond the constitutional limit. It is by no means clear that the act is not also" in conflict with section 8 of article 9 of the constitution, but it is unnecessary to express any opinion on that question now. We are of the opinion that there are other considerations upon which the decree of the court below would have to be affirmed even if the statute could be upheld, but regarding the legislation as vicious and calculated to lead to evil results in breaking down the wise provisions of the constitution against municipalities becoming indebted beyond the limit fixed, we prefer to base this decision on the broad ground that the law is invalid. The decree of the circuit court will be affirmed. Decree affirmed.