177 Ill. 97 | Ill. | 1898
delivered the opinion of the court:
The corporate expenditures or appropriations of the city 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 city or its comptroller unless the object of the contract or expenditure shall have been included in the general appropriation bill and an appropriation thereof made in such annual bill, unless such contract or expenditure is warranted by the proviso to paragraph 90 of chapter 24 of the Revised Statutes, entitled “Cities,” etc., which, so far as need here be noted, is as follows: “Provided, however, that nothing herein contained shall prevent the city council or board of trustees from ordering, by a two-thirds vote, any improvement the necessity of which is caused by any casualty or accident happening after such annual appropriation is made.”
The appellants urge the necessity for additional light growing out of the construction of the said elevated railways and depots, and the additional expense of gas and electric lights caused by the alleged combination of said gas and- electric light companies, constituted “accidents” or “casualties,” within the meaning of those words as employed in the said proviso of said paragraph 90; and further, the action of the city council in adopting the ordinance of the 18th day of October amounted to a declaration upon the part of the municipal corporation that the said necessity for additional facilities for lighting the city and the increase in the price of gas and electric lights were such “accidents” or “casualties.” The further contention seems to be, such declaration is an exercise of legislative power conferred upon the city to determine as to the expediency of measures relating to the local government, and that the judgment of the city council, acting within the scope of such legislative authority, is not subject to the control of the courts, but is conclusive upon the question.
The ordinance of the 18th of October was preceded by a preamble, which does not, in express terms, declare the existence of an accident or casualty, and it may well be doubted whether such declaration is comprehended in the general terms of the preamble. But aside from this, and aside from the question whether it is necessary the ordinance or preamble thereto should contain any declaration on the subject, we do not think even an express declaration on the part of the city would necessarily be conclusive. Power is given the city to act in case any casualty or accident makes the ordering of any improvement necessary. In the first instance the city council must determine as to the necessity for the improvement, and whether such necessity was caused by casualty or accident. The necessity for any improvement within the power of the city to provide is a matter committed by the law to the. judgment and discretion of the city council, and its determination as to such necessity is no doubt conclusive, in the absence of fraud. The determination of the council that that which caused the necessity to arise was a casualty or accident, within the meaning of these words as used in the statute, is to be accepted as prima facie, but may or may not be conclusive. It was said in North Chicago City Railway Co. v. Town of Lake View, 105 Ill. 207, speaking of the power of the city councils of cities, in the exercise of the authority expressly conferred, to define and declare what should be deemed nuisances, such authorities “have no power to pass an ordinance declaring a thing a nuisance which in fact is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but, on the contrary, would be an abuse of it.”
There is no accurate or accepted definition of either the word “accident” or “casualty” which would comprehend that which is here relied upon as authorizing the city council to enter into contracts involving the expenditure of money or make an appropriation of moneys over and above the amount provided for in the general appropriation ordinance. The construction of elevated railroads and depots, and the combination, though unlawful, of corporations, cannot, with any correctness of speech, be denominated casualties or accidents. The declaration of a city council that that is an accident or casualty which in its very nature is clearly not so, is an arbitrary and unreasonable exercise of the legislative power of the council, and is not conclusive. The chancellor correctly ruled the matters relied upon by the council to justify its action were not accidents or casualties, within the meaning of those words as used in the statute in question, and that the ordinance of October 18,1897, was therefore illegal and void.
The prohibition against the appropriation or expenditure of the public funds of the city in excess of the amount provided for by the general appropriation bill or ordinance was enacted for the protection of the taxpayers, and we have neither power nor the inclination to limit its lawful application. If exceptions to such prohibition, other than those found in the statute, ought to be made the legislative power should be invoked. Courts have power to construe and enforce statutes, but not to enact or amend them.
The appellee, being a tax-payer of the city, has full standing in equity to prevent by injunction illegal or unauthorized diversion of the public funds of the municipality or the execution of illegal contracts or the incurring of illegal indebtedness. (City of Springfield v. Edwards, 84 Ill. 626; Wright v. Bishop, 88 id. 302; 2 Dillon on Mun. Corp. 1237, 1289.) It is not necessary the pleading and proof should disclose the amount of taxes paid or to be paid by the complainant in such a proceeding as this. That the complainant is a tax-payer is sufficient to entitle him to ask relief against an unauthorized act of the taxing body which will add to the burden of the class of which he is a member, viz., tax payers.
The observations of counsel, and the authorities cited bearing upon the rules which govern the jurisdiction and procedure of courts of equity in cases where it is sought to enjoin the collection of the public revenues, have no application. The effort here is not to enjoin a tax but to restrain illegal expenditures of the public funds of the city and to prevent the execution of unauthorized contracts by the city.
It was not error to decree costs against appellants. It was error to award execution against the municipality, and to that extent the decree will be reversed. In all other respects the decree is affirmed. The costs will be apportioned as follows: The appellee will pay the costs in the circuit court, the appellants the costs in this court.
Decree affirmed in part.
