Blanchard v. Village of Benton

109 Ill. App. 569, 1903 Ill. App. LEXIS 374

• Court: Appellate Court of Illinois
• Decided: September 10, 1903
• Status: Published

Opinion

Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the Circuit Court of Franklin County, by plaintiff in error against defendant in error. Jury waived. Trial by the court without a jury. Finding and judgment in favor of defendant in error.

The declaration in effect alleges, that on the 3d day of January, 1893, the president and trustees of defendant duly passed an ordinance as follows.:

“ Be it ordained by the president and trustees of the village of Benton, in the county of Franklin and State of Illinois:

Section 1. That the village of Benton purchase from, the General Electric Company of Chicago, Illinois, a complete plant for the purpose of lighting the village of Benton aforesaid with electric light, for the sum of five thousand dollars ($5,000).

Section 2. That to provide funds'wherewith to purchase an electric light plant, as provided in section 1 of this ordinance, and pay for the same, the village of Benton issue ten bonds of "the denomination of five hundred dollars each, payable to the bearer fifteen years after the date thereof and payable at the option of said village after five years, and within fifteen years, at the office of the treasurer of the village of Benton; said bonds to bear interest at the rate of six per cent per annum, payable semi-annually at the office of the treasurer of said village of Benton; that the president of the board of trustees of the village of Benton and the clerk of said village are hereby authorized and directed to execute said bonds.

Section 3. That there be appropriated out of the funds appropriated for current expenses for the fiscal year beginning June the 1st, 1892, the sum of one hundred and fifty dollars ($150) for the purpose of paying the interest that may accrue on the bonds provided for in section 2 of this ordinance for the^first six months.

Section 4. That there be levied and collected a direct annual tax on all taxable property within the corporate limits of the village of Benton aforesaid, sufficient to pay the interest on' the said bonds mentioned and described in section 2 of this ordinance as the same becomes due and payable; and also to pay and discharge the principal of said bonds within fifteen years after date thereof, in the following amounts, to wit:

For the fiscal year commencing June 1st, 1893, the sum of three hundred dollars; for the fiscal year commencing June 1st, 1894, the sum of three hundred dollars; for the fiscal year commencing June 1st, 1895, the sum of three hundred dollars; for the fiscal year commencing June 1st, 1896, the sum of three hundred dollars; and for the fiscal year commencing June 1st, 1897, the sum of three hundred dollars. For the fiscal 'year commencing June 1st, 1898, the sum of eight hundred dollars, being the interest on the outstanding bonds and principal of one of the said bonds ; for the fiscal year commencing June 1st, 1899, the sum of seven hundred and seventy dollars, being the interest on the outstanding bonds and for the principal of one of said bonds ; for the fiscal year commencing June 1st, 1900, the sum of seven hundred and forty dollars, being the interest on the outstanding bonds and for the principal of one of said bonds; for the fiscal year commencing June 1st, 1901, the sum of seven hundred and ten dollars, being the interest on the outstanding bonds and for the principal of one of said bonds ; for the fiscal year commencing June 1st, 1902, the sum of six hundred and eighty dollars, being the interest on the outstanding bonds and for the principal of one of said bonds; for the fiscal year commencing June 1st, 1903, the sum of six hundred and fifty dollars, being the interest on the outstanding bonds and for the principal of one of said bonds; for the fiscal year commencing June 1st, 1904, the sum of six hundred and twenty dollars, being the interest on the outstanding bonds and for the principal of one of said bonds ; for the fiscal year commencing June 1st, 1905, the sum of five hundred and ninety dollars, being the interest on the outstanding bonds and for the principal of one of said bonds; for the fiscal year commencing June 1st, 1906, the sum of five hundred and sixty dollars, being the interest on the outstanding bonds and for the principal of one of said bonds; for the fiscal year commencing June 1st, 1907, the sum of five hundred and thirty dollars, being the interest on the outstanding bonds and for the principal of one of said bonds.”

That in pursuance of the purpose and provisions of this ordinance defendant issued ten municipal bonds, for the sum of $500 each, payable at the option of defendant after five years and within fifteen years, bearing interest from February 1, 1893, at the rate of six per cent, payable semiannually, installments of interest to accrue being evidenced by attached coupons for the sum of $15 each; and that plaintiff as an innocent purchaser for value, before maturity, became the owner and holder of certain of these coupons, which, having matured, the defendant refuses to pay.

To this declaration defendant filed a number of pleas, setting up as defenses the following: (1) That there was no ordinance authorizing the issuance of the bonds; (2) that there was no authority in 1893 under the laws of this state authorizing villages to own and operate an electric light plant; (3) that if there was authority to issue the bonds and own and operate a plant to light the streets, still, the bonds are void, because the plant was used to furnish light to private consumers for the. purpose of deriving revenues therefrom; (4) that there was no provision in the ordinance for the levying of an annual tax to pay the whole of the debt and interest, (5) and that the indebtedness existing, together with the bonds, exceeded the constitutional limit.

Defendant’s claim that there was no ordinance authorizing the issuance of the bonds, is based upon the contention of counsel that the proof of the ordinance set up in the declaration is not sufficient.

Upon the trial of the case in the Circuit Court plaintiff called as a witness J. M. Adams, the clerk of the village and custodian of its records. The witness produced and identified the record book in which the ordinances of the village were recorded. This record contained the ordinance set up in the declaration, at the end of which and as a part of the record was the following:

“ Passed January 3rd, 1893. Approved January 4th, 1893. W. W. Whittington, President of Village Board; J. M. Adams, Village Clerk. (Village Seal.) Published January 13th, 1893.”

After making this proof counsel for plaintiff offered the record in evidence.

Counsel contended that this proof was insufficient to establish the ordinance and warrant its admission in evidence. They insist that it fails for want of a certificate of the clerk as to publication, and cite Hutchison v. City of Mt. Vernon, 40 Ill. App. 20, and Lindsay v. Chicago, 115 Ill. 123. These cases have no application to the section of the statute under which proof was made in this case. They discuss the requisites of Sec. 4, Art. 5 of the City and Village Act, Sec. 65, Chap. 24, Hurd’s R. S. 1901. In Hutchison v. City of Mt. Vernon, above cited and especially urged upon us as controlling in this case, what was claimed to be the original ordinance, the original document, was offered, under the first clause of the above cited section of the statute, but not being certified to as that clause of the statute requires, the proof was held insufficient.

The proof in this case was made under Sec. 11, Art. 6, of the Act. Sec. 82, Chap. 24, Hurd’s R. S. 1901. That section is:

“ The clerk shall record, in a book to be kept for that purpose, all ordinances passed by the city council or board of trustees, and at the foot of the record of each ordinance so recorded shall make a memorandum of the date of the passage and publication or posting of such ordinance, which record and memorandum * * * shall be prima facie evidence of the passage and legal publication or posting of such ordinances for all purposes whatever.”

This ordinance and all that pertained to its validity had been made matter of record in the manner required by the statute, and the statute makes it mandatory upon the courts to accept such records as prima facie evidence of the due passage and publication.

It is further suggested by the counsel that the evidence shows that the words “Approved January 4th, 1893,” as they appear in the record of the ordinance, are in a different handwriting from that of the clerk who wrote the record, and were written in at a different time, and they say, therefore, the record should not have been admitted in evidence. We are of opinion this is of no consequence. There is nothing in the evidence tending to prove that these words were fraudulently inserted in the record or that their presence there makes the record speak other than the truth, and then the statute above quoted, under which the proof in this case was made, does not require any memorandum, of such approval to be made by the clerk, but only requires him to make memorandum of the date of passage and of the publication or posting of such ordinance. So if the words challenged be rejected, it would not affect the availability or sufficiency of the record as primafaoie evidence.

We are of opinion counsel’s proposition that under the laws of this state a city or village could not own and operate a lighting plant for the purpose of lighting its streets and public places, is not well taken. The statute of 1872 provides that cities and villages shall have power to provide for the lighting of streets, alleys, avenues, sidewalks, wharfs, parks and public grounds. Sec. 1, Art. o, City and "Village Act; Sec. 62, Chap. 24, Hurd’s, 1901. “ The power of a city to light its streets includes the power to acquire by purchase or building, a plant for such purpose.” Hay v. City of Springfield, 64 Ill. App. 671.

Counsel contend that in any event the bonds were void because the evidence shows that appellee’s plant was used not only to light the streets and public places of the village, but to furnish light to private consumers for the purpose of deriving revenue therefrom.

The ordinance under which the bonds were issued and sold, and the plant established, provides that the village of Benton shall purchase “.a complete plant for the purpose of lighting the village of Benton aforesaid with electric light,” and this is the only provision in the ordinance concerning the purpose or use to which the plant should be put. It is not necessary for us to discuss the question as to the power of the city to own and operate a plant for the purpose of furnishing light to private consumers, for revenue. Appellant had the power to provide itself with an electric lighting plant for the purpose of lighting its streets and public places, and there is nothing in the language of the ordinance to put a purchaser, of the bonds upon notice of any purpose, if such there was, to devote the proposed plant to other than lawful uses. The ordinance is clearly susceptible of an interpretation in full accord with the law, and in such case, though it might be susceptible of another or broader interpretation, courts will o-ive it that which will validate rather than that which will overthrow it, and all innocent parties acting under or with reference to such ordinance are warranted in so interpreting it. Harmon v. City of Chicago, 140 Ill. 374; Berry v. City of Chicago, 192 Ill. 154. The fact, if it be a fact, that appellee, after its plant was in operation, put it in whole or in part to an unlawful use, can not relieve appellee from the duty to pay the innocent purchaser of its bonds.

As to counsel’s contention that the bonds are void for want of a provision in the ordinance for the levying of an annual tax to pay the debt and interest, as required by statute, it is only necessary to inspect sections 3 and 4 of the ordinance above quoted and make the computations on the proper basis. The statute has been fully and strictly complied with.

Finally, it is contended that the bonds are void because at the time of their issue the existing indebtedness of appellee, together with the bonds, exceeded the constitutional limit of five per cent.

The assessed valuation, of appellee as equalized for the year 1892, was $109,001. This gave it a debt-carrying capacity of $5,450.05. Previous to February 1, 1893, the day the bonds bear date, there had been made the tax levy of the year 1892. How much of this levy had on February 1, 1893, been collected and turned into the village treasury the evidence does not disclose, but there was on that date $496.20 in the treasury. Against the fund to arise from the tax levy of 1892, there had been drawn orders as follows: October 3,1892, $100. December, 1892, $400;20. The last named of these orders contained the provision, “payable out of the taxes-levied in 1892, when collected in 1893,” and the other contained words to the same effect. Whether both or either of these outstanding orders had been paid before February 1st is not material. Outstanding warrants or orders issued or drawn by a municipality, against cash in the treasury, or specifically payable out of a fund to arise from a tax which has been actually levied, do not constitute an indebtedness within the meaning of the constitutional inhibition. City of Springfield v. Edwards, 84 Ill. 626; Law v. People, 87 Ill. 385.

Counsel for appellee contend that there was another item of indebtedness to the amount of $856.98 outstanding at the date of the bonds, but in our opinion the evidence does not warrant this contention. There appears in the record of the village a report of a special committee, made to the president and trustees at a meeting of the board, on April 22, 1893, a statement that the committee had found it necessary to make two additional contracts on December 31, 1892, for feeders and lamps, aggregating $856.98, payable out of the taxes of 1893, and recommends that the claim be audited. The evidence does not show that this committee was authorized by the board to make such contract, nor does it show that the board approved its acts in that respect, nor that this transaction was ever carried out, nor that any claim concerning it was ever audited or paid, nor that any such claim is still outstanding. This is all there is in the record as to that item and it falls far short of establishing it as an item of indebtedness, existing on February 1, 1893. It proves no more than that on the 22d of April, 1893, almost two months after the date of the bonds, a committee reported to the board that on December 31, 1892, they had concluded negotiations for the purchase of the articles mentioned, on the terms mentioned, subject to the approval of the board, and as above stated, there is no evidence that the board ever approved. Even if the board did at that time approve the action of the committee, the indebtedness incurred thereby, as between the bondholders and all others, would be subsequent to the bond indebtedness.

And further upon this branch of the case, counsel insist that the interest coupons attached to the bonds constitute an indebtedness, and instead of the debt for the lighting plant being $5,000, it was $9,500.

We are of opinion that accruing interest upon municipal indebtedness is a mere incident of the principal, and not to be reckoned as part of the indebtedness within the meaning of the constitutional inhibition. We know of no holding of the courts of this state bearing directly upon this question, but our view accords with the common understanding and common sense of the situation.

We find that there is material and reversible error in this record. The judgment of the Circuit Court is reversed and the cause remanded.