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ern Railway division of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, for a township park tax against the said property returned as delinquent. Objections which were identical were filed by the defendants in error, and by agreement the cases were consolidated and heard by the court. The objections were sustained and judgment was refused. A writ of error was sued out of this court to bring the record in review.
The objections were, first, that the township park tax for the year 1913 for which judgment was asked was levied by virtue of the act entitled “An act to establish and maintain parks and parkways in towns and townships," (Laws of 1911, p. 454,) and was not levied by the electors of the township at the annual town meeting; second, that under the act park commissioners may be appointed only in towns where there is not at the time a board of park commissioners invested by law with control over any park lying wholly or partly within said towns; that the city of Champaign, located in the township, levies a tax for the maintenance of said parks and for park purposes, under the act entitled "An act to authorize cities having a population of less than 50,000 to establish and maintain by taxation public parks,” (Laws of 1907, p. 432,) and therefore the tax was invalid, as otherwise there would be two separate levies and two separate taxing authorities for the same purpose on the same property in the city of Champaign.
Section 8 of the act of 1911, under which the tax was levied, contains this provision: “For the purpose of providing a fund for the maintenance of said park or parks, the board of park commissioners are hereby authorized to levy annual taxes, not exceeding one mill on each dollar of the valuation of the property of said town or township, as assessed for taxation, in any one year, which shall be levied and collected at the time and in the manner that other town or township taxes are required to be levied and collected." The first objection was based upon the assumption that if the tax levied by the board of park commissioners must be levied and collected at the time and in the manner that other town or township taxes are required to be levied and collected the tax must be voted by the electors present at the annual town meeting, in accordance with section 3 of article 4 of the Township Organization law, giving power to the electors, at the annual town meeting, to direct the raising of money by taxation for certain purposes and for any other purpose required by law. To levy a tax is to impose or assess it upon property and collect it by authority of law. The power to levy a tax is the power to exact a contribution for a public purpose by compulsion, although in various enactments of the General Assembly provisions for the levy of taxes have been applied especially to the order or ordinance for the tax or the assessment of it or some part of the process of charging it on specific property. There is practically the same provision contained in this act in the case of the tax based on the certificate of the board of town auditors of claims allowed by that board which are to be certified by the town clerk to the county clerk as a tax and which the statute declares shall be levied and collected as other town taxes. That does not mean that the electors at the town meeting must levy the tax. The park commissioners made a certificate of an annual tax levy for the maintenance of public parks of the township at the rate of one mill on each dollar of the assessed valuation of property and the town clerk certified the tax to the county clerk, and that is the method provided by law in the case of other town or township taxes. It was not the intention of the General Assembly, in giving the authority to the park commissioners to levy a tax, to further provide that the power should not be exercised by them but by the electors at the town meeting. The statute was complied with and the court erred in sustaining the objection.
The act only authorizes the appointment of a board of park commissioners in any town or township within whose limits there is no board of park commissioners invested by law with control over any park lying wholly or in part within the town or township. The second objection stated that limitation and apparently was designed to challenge the legal existence of the board of park commissioners, which could not be done in the collateral proceeding to collect the tax. (People v. Dyer, 205 Ill. 575.) Counsel say, however, that while they do not admit the existence of the board they do not deny it in this case, but rely only on the fact, which was proved, that the city of Champaign had levied a park tax of $500, so that two municipal corporations were attempting to exercise jurisdiction over the same territory for the same purpose. If such an attempted exercise of jurisdiction would affect the validity of the disputed tax, there was no evidence that any of the property of the objectors was within the city of Champaign. The second objection afforded no ground for refusing the judgment.
It is further contended in argument that the park commissioners were not corporate authorities of the township and therefore could not be invested with power to assess and collect taxes, because the act contains no provision for the submission to the voters of the question of adopting it or establishing a park district and authorizes the appointment of commissioners by the county court, who cannot levy a tax, as held in Herschbach v. Kaskaskia Island Sanitary District, 265 Ill. 388, and other cases. The written objections filed in the county court did not include any objection on that ground, so that the county court did not decide the question now sought to be raised and it will not be considered here. The judgment is reversed and the cause remanded.
Reversed and remanded.
THE PEOPLE ex rel. Abram V. Brokaw et al. Appellants,
vs. FRANK E. PAINTER et al. Appellees.
Opinion filed April 22, 1915.
1. Schools—population requirement applies where township is organised into high school district. Where a township is proposed to be organized into a high school district the population requirement of section 1 of the Township High School act of 1911 applies, and it is essential that the township shall contain a school district having a population of 1000 and not exceeding 100,000.
2. SAME--section 6 of Township High School act does not apply to whole township. Section 6 of the Township High School act of 1911 does not apply to a whole township but to compact and contiguous territory in part of a township or townships.
APPEAL from the Circuit Court of Henderson county; the Hon. ROBERT J. GRIER, Judge, presiding.
ALBERT F. FAWLEY, State's Attorney, and O'HARRA, O'HARRA, Wood & WALKER, for appellants.
W. C. Ivins, and ScofieLD & CALIFF, for appellees.
Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:
To an information filed in the circuit court of Henderson county charging the appellees with usurping, without warrant or authority, the offices of president and members of the board of education of Terre Haute township high school, which was alleged to have no legal existence, and calling upon them to answer by what right they claimed to hold and execute said offices, they filed a plea of justification, setting forth in detail the proceedings for the organization of the district and their election, the substance of which was, that on March 8, 1914, fifty or more legal voters of the contiguous and compact territory comprising and described as township No. 8, north, range No. 5, west of the fourth principal meridian, in Henderson county, filed their petition with the county superintendent of schools praying that notice be given of an election for the purpose of voting for or against the proposition to establish a township high school for said township; that the county superintendent of schools gave notice of an election to be held on March 21, 1914, which was held and resulted in favor of the proposition, and that the county superintendent ordered an election for a high school board of education, to consist of a president and six members, which was held on April 20, 1914, and at which the appellees were elected to said offices. A demurrer was filed and was overruled and the information was dismissed, whereupon this appeal was prosecuted.
The plea alleged that the petitioners were legal voters of the contiguous and compact territory comprising and described as township No. 8, but did not allege that the township contained a school district having a population of 1000 or more and not exceeding 100,000 inhabitants. The plea was based upon section 6 of the act entitled “An act to authorize the organization of high school districts,” (Laws of 1911, p. 505,) and the question raised by the demurrer and argued in this court is whether a township can be organized as a high school district under that section. Section 1 of the act provides that any school township that contains a school district having a population of 1000 or more and not exceeding 100,000 inhabitants may be organized into a high school district. Section 6 provides that the inhabitants of any contiguous and compact territory, whether in the same or different townships, may establish a township high school for the benefit of the inhabitants of the territory described in the petition. If section 6 does away with the restriction contained in section 1, so that the same territory which is required by section i to contain a school district having a population of 1000 or more and not exceeding 100,000 inhabitants, may be organized into a high school district under section 6 without containing