Comm'rs of Highways of Deer Park v. O'Sullivan

Pillsbury, J. It is admitted that at the time of the contract between the commissioners of highways and the payees of the order there was no money in the treasury applicable to their payment, and that the levy of taxes for the current year had been levied to meet other expenses during the year, and it sufficiently appears from these facts, taken in connection with the order itself, that it was not in contemplation of the parties that the money derived from taxes already levied for the present fiscal year should be applied to the payment of the work or in taking up the orders issued. The order is payable generally out of the funds in the hands of the treasurer and its time of payment extended far enough in the future to make the taxes levied in the subsequent fiscal year available for its payment. It is thus seen that the parties intended to appropriate the revenues of a subsequent year in discharge of the indebtedness incurred in a former yeai*. It was held in Commissioners of Highways v. Newell, 80 Ill. 587, that a tax having been levied by the commissioners they might enter into contracts to be paid for out of the funds derived from such levy. And in Brauns v. Town of Peoria, 82 Ill. 11, it is said by the court that in the many provisions of the statute respecting roads and bridges, they failed to find any authority conferred upon the highway commissioners to expend money on the roads and bridges in their respective districts which is not in their treasury to be expended, and which had not been actually levied, nor is there any authority conferred upon them to anticipate revenues and expend it, unless the same be actually levied, referring to Newell’s case, supra. It is further said that “it seems to be the policy of the law, and a very just one, that the accruing revenues of the year shall be appropriated to the wants of the year, and that no expenses shall be incurred in the absence of money already levied to meet them.” These decisions would seem to be conclusive against the right and power of the commissioners of highways to enter into any contract having the effect to create an indebtedness against their township to be paid at a future time and out of funds derived from taxes levied in subsequent years. Being thus prohibited from creating such indebtedness, they are placed in the same position as municipalities that have an indebtedness exceeding the constitutional limit, being thereby prohibited from increasing it, and the decisions respecting the powers of such municipalities are applicable to these quasi corporations. It was held in The City of Springfield v. Edwards, 84 Ill. 626, and re-affirmed in Law v. The People, 87 Ill. 387, that municipalities prohibited from ereating any further indebtedness, because the constitutional limit had been reached, might, nevertheless, anticipate the collection of the revenue arising from taxes already levied for current expenses without violating the constitutional or statutory prohibition, but in such case the delivery of the warrant upon the treasury must have the legal effect and operate as a contract between the corporation and the person receiving the warrant, that the city shall thereby incur no liability whatever. In such a case there is no debt incurred, because the warrant on the treasurer is received for the work done or the articles furnished. It is further held that the acceptance of such warrant drawn against the tax levied is a virtual assignment of so much of the funds arising from the tax as will satisfy such warrant, and the person thus accepting it must look to the officers collecting the tax for that amount, and that his remedy is against them, and not against the corporation, otherwise a contingent debt would be created against the corporation which it was powerless to do. How it is evident in the case at bar, that the officers charged with the collection of the road and bridge tax levied by the commissioners for. the fiscal year commencing the Tuesday preceding the annual meeting of the county board in September, 1876, could not apply it to the payment of this order under such rule. The order does not purport to appropriate any portion of that tax levy to its payment, nor to be an assignment of any part of it. The collector would be required to make his settlement over one year before the order by its terms was due and payable. How, then, could he justify its payment, when by its terms it was not due and payable until the taxes could be collected from the levy made in 1877 % This, manifestly, he could not do. It may be remarked that the rule announced in Springfield v. Edwards, and Law v. The People, supra, has by act of the legislature become a part of the statutory law of this State. Sess. Laws, 1879, page 73. This order, if valid, could have no other legal effect than to create a debt against I he township, to be paid in the future. It is as much an evidence of indebted-mess as were the certificates issued by the city of Chicago, and which were so held to be. in Law v. The People, supra, and as we have seen that the commissioners of highways were powerless to pledge the credit of the township for work and labor upon the roads and bridges to be paid for out of revenues to be derived from taxes subsequently levied, we must hold the order void. And as it has none of the qualities of negotiable paper under our statutes (People v. Johnson, 100 Ill. 567), its assignment to the plaintiff before maturity conferred no better title to it upon him than was vested in the payees therein. It is argued, however, that the Poad and Bridge Act of 1877 validated the order and made it a binding obligation upon the town. The provision relied upon is contained in the second part of Sec. 81 of that act (Sess. Laws 1877, page 196), and is as follows: "They (the commissioners) shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property for the making and repairing of bridges * * * and for the payment of any outstanding orders drawn by the commissioners on their treasurer, and shall levy a tax, etc."{ This last clause does not, in our opinion, have the effect claimed for it. We do not believe it was the intention of the legislature to thereby legalize any act of the commissioners in creating a debt against the town in violation of the pre-existing statutes of the State. It does not purport to be retroactive in its operations and we should not give it that effect, unless such intent is evident from the language employed. That such was not the intention we think manifest not only from the terms employed, but also from the saving clause contained in the repealing section, where, after repealing the acts of April 10th and August 15,1872, it provides that such repeal shall not affect any suit or proceedings pending or impair any right existing at the time this act shall take effect. If then the order in suit was void for the reasons stated and was not binding upon the town as an evidence of indebtedness, the town had a perfect defense to it, and this right was an existing one and was saved by the terms of the statute. Dobbins v. National Bank. Unpublished Opinion, Sup. Ct. Illinois. Our conclusion is, that the plaintiff can not recover upon the order in evidence, and as the facts are agreed, there can be no necessity for remanding the cause, and therefore the judgment of the court below will be reversed and judgment entered in this court for the defendants below, with the costs of both courts, and it is so ordered. Judgment reversed, and final judgment in this court for the defendants.