Litz v. Village of West Hammond

Mr. Justice Scott delivered the opinion of the court: Under the provisions of section 91, chapter 24, Hurd’s Revised Statutes of 1905, the corporate expenditures for appropriations of the village in any one year cannot lawfully exceed the amount provided for in the annual appropriation bill of that year, and no contract can be legally made or expense incurred by the village unless the object of the contract or expenditure shall have been included in the general appropriation bill and an appropriation therefor made, (City of Chicago v. Nichols, 177 Ill. 97,) except in an emergency, the existence of which is denied by the bill now under consideration. The village of West Hammond purchased the real estate in question and issued warrants to pay for the same without any provision for so doing having been included in the annual appropriation bill passed during the first quarter of the fiscal year in which the warrants were issued. Those warrants are still in the hands of Mott, from whom the real estate was purchased. The tax-payers are in equity the owners of the fund upon which the warrants are drawn. Municipal authorities are merely trustees, and can only hold and apply the fund to the legitimate purposes of the trust. “The law is established, beyond doubt or controversy, that a bill to enjoin public officers so situated from misappropriating the fund in their charge is a proper remedy for a tax-payer. Courts of chancery will interfere to restrain such authorities from a misuse of the fund entrusted to them or its appropriation to a purpose not warranted by law.” Adams v. Brenan, 177 Ill. 194, and cases there cited. The fact that the warrants had issued we regard as without significance. So long as they had not been paid, the funds of the municipality were not, in fact, applied to the purchase of this real estate, and so long as those funds remained in the hands of the village treasurer their unauthorized expenditure might be restrained at the suit of the tax-payer. Upon this branch of the controversy appellees rely upon City of East St. Louis v. East St. Louis Gas Light and Coke Co. 98 Ill. 415, Town of Kankakee v. McGrew, 178 id. 74, County of Coles v. Goehring, 209 id. 142, and other cases, where the municipality itself, after the contract was executed by the other party thereto, has sought to avoid the performance of the contract on its part, where it could not put the other party in statu quo or where it did not offer so to do. It seems scarcely necessary to say that such cases are entirely without application here, where the suit is brought by tax-payers who were not parties to the contract. It is also urged by appellants that the municipality was without right to acquire that portion of this real estate which it designed to use as a site for a pumping station for a system of sewers that was to be constructed by special assessment, except by condemnation. To this appellees reply that “in 1905, when the premises in question were acquired, the only method open to the village of West Hammond to acquire the property in question and pay for the same out of the general fund was first to seek to agree with the owner on the amount of compensation, and, failing in this, to take steps to acquire the property under the statute relating to the exercise of eminent domain.” We think the proposition just quoted inaccurate in view of the fact that it appears from the bill that lots 18 and 19 of the property purchased were acquired for the sole purpose of érecting thereon the pumping station which was to be used in connection with the sewer system, and that said lots, if so used, could be used for no other purpose. Where private property must be acquired for the making of any local improvement, to be paid for, in whole or in part, by special assessment, the statute requires that the title thereto shall be obtained by condemnation proceedings. (Hurd’s Stat. 1905, chap. 24, sec. 519; Village of Hyde Park v. Spencer, 118 Ill. 446.) “Where the method by which property shall be obtained by a village has been prescribed by the legislature that method is exclusive, and where the law provides for acquiring property by condemnation,” and does not in express terms authorize the use of any other method, “a village cannot acquire it by private purchase, which would lead to favoritism, corruption, private bargain and the exercise of improper influence.” (Snydacker v. Village of West Hammond, 225 Ill. 154.) Where the only purpose for which the real estate is acquired is that it may be used in making local improvements, the provisions of the statute requiring condemnation may not be defeated by an attempt to purchase the property and pay for it out of funds resulting from general taxation. The question of the title of the village to the lots 18 and 19 was considered in Snydacker v. Village of West Hammond, supra, where it was said that “the deed to the appellee [the village] divested the grantor of his estate and vested it in appellee, and no one has questioned the legality of the purchase by any proceeding against appellee;” and it was therefore held that it was not a good objection to an application for the confirmation of the special assessment to pay for the pumping station and system of sewers that the title to this real estate had been acquired by purchase. So far as appeared from the record then before us, the title vested in the village might never be disturbed, and the objection to the confirmation of the assessment could not be sustained merely because there was a possibility that the conveyance to the village might thereafter be found to be invalid. It did not appear from that record that a suit had been or would be brought to test the validity of that transfer to the village. The rights of the objectors in the special assessment proceeding woúld perhaps have been better conserved had the question of the validity of the title of the village to the real estate been litigated at their instance prior to the hearing of their objections to the confirmation of the assessment. While we do not regard it as here material, yet for the purpose of explaining what might seem to be an inadvertence, we point out the fact that it appeared from the record in the Snydacker case that the real estate had been paid for by the village. This suit was instituted by appellants as property owners paying taxes upon property within the village but not within the district to be benefited by the sewer system, the pumping station for which was to be located upon the real estate purchased of Mott. From one portion of the bill it appears that the board of local improvements is about to award to Healy the contract for the erection of the pumping station and that Healy will immediately proceed to construct the same upon said real estate, and the bill asks an injunction to restrain Flealy from performing the contract. The station is to be constructed solely with funds raised by the assessment of property lying within the district. Appellants contribute nothing to that fund, and they have not attempted to. show by their brief and argument that the demurrer was improperly sustained as to this part of the bill. The errors assigned* in so far as they question the action of the court below in sustaining the demurrer to the part of the bill by which an injunction was sought to prevent the construction of the pumping, station, must therefore be regarded as waived. Appellees urge, however, that the inclusion of the portion of the bill just referred to makes the bill multifarious, and that the demurrer was properly sustained for that reason. We deem it unnecessary to consider this question. It appears from the record that the court dismissed the bill for want of equity. It does not appear that the demurrer was sustained on the ground that the bill was multifarious. There may be equity in a bill even though it be multifarious and for that reason obnoxious to a demurrer. Where the record shows that the bill was dismissed for want of equity and it does not appear that the question of multifariousness was considered by the court below, appellee will not be permitted to sustain the decree in this court on the ground that the bill is multifarious. Had the demurrer been sustained for that reason appellants would have had an opportunity to ask leave to amend, and had leave been granted this objection could readily have been obviated by the amendment. The decree of the superior court will be reversed and the case will be remanded to that court for further proceedings consistent with the views herein expressed. Reversed and remanded.