McGrath v. City of Chicago

Bailey, J. The act of the General Assembly, entitled “ An act in regard to the assessment of property and the levy and collection of taxes by incorporated cities in this State,” approved April 15,1873, and known as “ the City Tax Act,” provided a mode for the assessment and collection of taxes different from that prescribed by the general revenue laws of the State, and authorized the election or appointment of certain officers to carry out the revenue system thus inaugurated. The last section of the act empowered the City Council, in its discretion, to provide by ordinance for the appointment of a city tax commissioner, to fix the term of his office and the amount of his salary, and to confer upon him such powers, and to require of him the performance of such duties as such Council might deem necessary and proper. In pursuance of the powers thus granted, the City Council of the City of Chicago, on the 15th day of June, 1874, passed an ordinance' providing for the election by said Council of a city tax commissioner, fixing his term of office, prescribing his powers and duties, and making it the duty of said Council, from time to time, to fix the amount of his salary. Manifestly the office of tax commissioner thus created was a part of the machinery for carrying out the revenue system created by the act, and that the validity of the office depended upon the validity of the system of which it formed a part. In People v. Cooper, 83 Ill. 585, said act was declared to be unconstitutional and" void, and it follows, unavoidably, as it seems to us, that the ordinance under which the plaintiff was elected to the office of city tax commissioner, and under which he claims to have performed the duties and to be entitled to the salary of such office, was void and incapable of conferring any rights upon him. It is urged, however, that the plaintiff’s election as city tax commissioner may be sustained under the provisions of section 1, chapter 10, of the former charter of the City of Chicago. Tuley’s Laws and Ordinances, 476. It is sufficient answer to say, that the City Council, in creating the office, fixing its term and duties, and filling it by the election of the plaintiff, did not assume to act, and did not in fact act, under that section of the charter. By that section it is provided that an officer termed “ a commissioner of taxes ” should be appointed by the Mayor with the advice and consent of the Council, to hold his office for the term of four years, and to perform the duties imposed upon such officer by said charter. It is clear that the office, though similar in name, was not the same office created by the ordinance of June 22, 1874, and that the plaintiff’s election can derive no validity from-the provisions of the old charter. But there is another ground upon which it must be held that the plaintiff was not entitled to hold said office and receive its emoluments during the period for which he is now seeking to recover the salary pertaining to the office. The creation of said office and the plaintiff’s election to it, were anterior to the organization of the City of Chicago under the general incorporation law, and by force of said organization, said office was abolished. In People v. Brown, 83 Ill. 95, and Crook v. People, 106 Ill. 237, it was held that the reorganization of a city under the general incorporation law was an abrogation of its former charter, and determined the tenure of all officers under it, except such as were within the saving clause of the general law. The saving clause provided that the officers in office at the time of the organization under the general law, “ shall continue to exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified.” It is held in the cases above cited, that this proviso must be understood to apply to the officers provided for in the general incorporation law, answering to the’ same officers under special charters. There is no provision in the general incorporation law for the election or appointment of a city tax commissioner, nor is any officer provided for having powers or duties answering to that of city tax commissioner created by the ordinance in question in this case. This cause was tried before the court without a jury, and no questions of law were raised at the trial. The only contention now is, that the finding and judgment are contrary to the evidence. We are of the opinion that said finding and judgment may be sustained upon either of the theories above noticed, and the judgment will, accordingly, be affirmed. Judgment affirmed.