Thorp v. King 42 Ill. App. 513

J. Y. Thorp et al. v. S. N. King et al.

Municipal Corporations—Town Meetings—Rescission of Action of—Former Adjudication.

1. A town in a county under township organization may lawfully build a town hall. Likewise such town, like an individual, may change its purpose and rescind its former action to this end, unless some right in another has been acquired or has vested under its action.

2. The power of a town to erect a hall or to rescind a former determination to do so, may be exercised at the regular annual town meeting or at a special town meeting, if called for that purpose.

3. All electors are charged with notice of the time when an annual town meeting will be held, and also with knowledge that any and all corporate business of the town may then be lawfully transacted.

4. In the case presented, this court holds, in view of the evidence, that the annual town meeting in question had full power and authority to consider and act upon a proposition to abandon the erection of a town hall and to rescind the action of a previous special meeting, though the notice of the town clerk as to the convening of such town meeting contained no statement that such was the object, or one of the objects of the meeting, un’e s such rescission illegally affected some vested right or interest of another, and that such was not the case herein.

5. A tax payer who has paid taxes levied for a certain purpose by a town, does not become thereby invested with such right as to deprive the town which had all its power from a majority of the legal voters thereof, from withdrawing from the completion of such purpose; all that is required in such cases is a restitution to tax payers.

6. No contract for the erection of a town hall or any part of the work of its construction having been entered into when the annual town meeting decided not to build, the fact that the building committee afterward contracted for its construction and paid certain sums of money under such contract, cannot operate retroactively and make invalid the aclion of the town meeting.

7. The fact that the auditing board of the town audited the disbursements of the building committee and accepted the same as valid appropriations from the building fund, can have no bearing upon the question of the power of the annual town meeting to act.

8. To create a complete or partial bar to a given proceeding, a prior judgment must be between the same parties, standing in the same capacity, or else between their privies.

*514[Opinion filed December 3, 1891.]

In error to the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding.

The town of Normal in McLean County, at a special town meeting on the 22d day of June, 1889, determined to erect a town hall and ordered that a levy sufficient to raise $6,000 be made for that purpose. A committee of five was appointed, and empowered to select and purchase a site for the hall, and to supervise the construction of the building, and exercise the usual powers of a building committee.

This committee perfected an organization and received a proposition from Thomas Metcalf to sell them forty feet of ground for a site for the hall. At a meeting of the committee on the 5th of August, 1889, a motion that an offer of Thomas Metcalf to sell sixty-two and one-half feet at the corner of Broadway and North streets, at $10 per foot, as a site for said hall, be accepted, was adopted, and the secretary directed to notify Mr. Metcalf of such acceptance, and that the purchase money would be paid when taxes were collected. Mr. Metcalf, who was then in Boston, was so notified, and on the 10th of August, 1889, replied by letter, stating that his offer was for two lots (forty feet) and that there was a cloud upon his title which he was taking steps to remove, and when that was done he would be in condition to make a warranty deed, and that to aid him in answering as to the additional twenty feet of ground included in the committee’s order, he desired information from them as to any proposed change in the plan of the building, as they seemed to want more ground than he had offered them. The records of the committee do not disclose that any further action was taken with regard to the purchase of a site or as to the matter whatever, until after the annual town meeting of the town of Normal in April, 1890. A levy was made upon the taxable property of the town to provide funds to pay for the proposed town hall. At this regular town meeting, which was held as required by the statute, on the 1st day of April, 1890, and which was attended by nearly four hundred voters, a motion was adopted rescind*515ing and annulling the action and proceedings of the special town meeting held 22d of June, 18S9, relating to the building of a town hall, and declaring that the erection of such proposed hall was an unwise and extravagant expenditure of money, and that it be abandoned, and that no more of the taxes levied therefor should be collected, and that so much as had been collected should be refunded to the persons who had paid them, less the commission paid for its collection. The vote upon the adoption of this resolution stood 296 for and 98 against it.

The individual members of the building committee were each present at this annual town meeting.

The building committee created by the special June meeting refused to recognize this action of the regular town meeting as legal, but proceeded to complete the negotiations with Metcalf for a site for the building. Their records show that at a meeting of the committee on the 23d of May, 1890, they directed that an abstract of the title of the Metcalf property be procured by the secretary of the committee, and that if the title be found perfect that Metcalf be requested to execute a good and sufficient warranty deed, for which payment was ordered to be made by the committee; and the record of a meeting of the committee held June 7, 1890, shows the acceptance of a deed from Metcalf and an order to the secretary to draw an order for the amount of the consideration with interest; this order was drawn and paid June 30, 1890. The committee again met and appointed a subcommittee to obtain specifications and plans for a town hall building, and at subsequent meetings the committee adopted a plan, advertised for bids for the erection of the hall, and entered into a contract for its construction and completion. This contract required the payment of 82,500 to the contractors in advance, which was by the committee on the 22d day of August ordered to be paid and was paid thereafter and before the institution of this suit. The moneys thus paid to the contractors, and to Metcalf for the ground for the building, was collected by taxation under the special levy made for this purpose and came into the hands of the committee by its treasurer from the officials who collected it.

*516On the 26th day of August, 1890, the appellees, fourteen in number, citizens and tax payers of the town of ¡Normal, exhibited their bill in chancery against- the members of the committee, praying for an injunction restraining further proceedings upon the part of the committee and for such other relief as might be found equitable.

Afterward, the town of Horma! and J. Y. Thorp, supervisor of the town, were made defendants by appropriate amendments to the bill. The case was submitted to- the court and a decree rendered which declares void all acts of the committee done or performed after the town, at the April meeting, 1890, .determined not to build a town hall and rescinded all former actions having reference to or authorizing the construction of such hall, and enjoins the committee and each member thereof from acting or assuming to act further in the matter of building a town hall, and from pledging or paying out any funds in their hands for any such purpose. The costs were decreed to be paid by J. Y. Thorp, W. H. Schuneman and H. Zimmerman, who were members of the committee, each of whom appealed from such decree, and thus the record is before the court.

Mr. Charles M. Peirce, for plaintiffs in error.

That the town has authority to build a town hall under the statute can not be questioned. Starr & C. Ill. Stats. Sec. 39, Chap. 139, page 2411; Greeley v. People, 60 Ill. 19; French v. Quincy, 3 Allen (Mass.), 9; Town of Beaver Dam v. Frings, 17 Wis. 398; Stetson v. Kempton, 13 Mass. 271; Bates v. Bassett, 60 Vt. 530; Same case, 15 At. Rep. 202.

The building of a town hall comes clearly within the statutes cited. Greeley v. People, supra, Vansickelyn v. Burlington, 27 Vt. 70, and Dillon on Municipal Corporations, Sec. 91, and cases there cited, fix this question beyond dispute.

The town has power and it is its duty to provide for its wants and prospective wants. Bates v. Bassett, 60 Vt. 530; Greenbanks v. Boutwell, 43 Vt. 207; French v. Quincy, 3 Allen (Mass.), 9; Spaulding v. Lowell, 23 Pick. (Mass.) 80; Willard v. Inhabitants of Newburyport, 12 Pick. (Mass.) 80; *517Stephens v. Kent, 26 Vt. 511; Reynolds v. Mayor of Albany, 8 Barb. (N. Y.) 597; Eddy v. Willson, 43 Vt. 362; Hill v. Boston, 122 Mass. 344.

The power and discretion is left to the town to determine its present and future wants.

This case presents the question whether or not, after a tax has been legally levied and voluntarily paid for any purpose by the tax payers and there is no failure of the purpose for which the tax was levied, can a few tax payers complain and: can the court of chancery, after adjudication and judgment rendered in a court of record against the same parties, declaring a certain proceeding or meeting void, from which no appeal is taken, then declare by decree the same meeting valid and set aside all action that has been done by reason of such decision?

There was no notice that anything would be done at the April meeting of 1890, to reverse or rescind what had been done at the June meeting, and common fairness required and the law required that a notice should have been given. Brackett v. Whidden, 3 N. H. 19; Dillon on Municipal Corporations (3d Ed.), Sec. 266, and notes there cited.

We concede that before the assessment of a special tax was made, and while the same remained in mere resolution, that the town might, by a town meeting legally called, have rescinded the order levying the tax, but after the tax was levied and collected it was certainly too late, and therefore the resolution passed at the April meeting of 1890, rescinding what had been done at the June meeting of 1889, was a nullity and void. Pond v. Noegus, 3 Mass. 230-233; Stoddard v. Gilman, 22 Vt. 560.

The town, at a town meeting, has no right to audit accounts. The statute provides for the auditing of accounts and prescribes just how it shall be done. People v. Supervisors of Onondaga, 16 Mich. 254, 258 and 259.

The committee (plaintiffs in error) were the agents of and acting for the town of [Normal in everything that they did, and the ratification and approval by the board of town auditors is conclusive. See Shea v. Inhabitants of Milfred, 14 N. E. Rep. 764; Dean v. Randolph, 132 Mass. 475.

*518All of the contracts of this committee were made (in the language of the Circuit Court) in good faith, and all of the parties with whom the committee had contracted are necessary parties; especially is this true of Stillhamer & Co., with whom the committee contracted for the material and erection of the town hall.

When a tax payer has paid tax that was lexded for a special purpose, he is entitled to have the enterprise carried out after tax has been collected. Nelson v. Milford, 7 Pick. (Mass.), 18; Hall v. Inhabitants of Holden, 116 Mass. 172; Braintree Water Supply Co. v. Town of Braintree, 16 N. E. Rep. 424.

And in this case it was held by the court in the first instance when passing on the demurrer in the original bill, that if any third parties’ interest intervene, then there could be no rescission, and we think that is the test to be applied.in considering the right of the town of Normal to rescind in April, 1890, what had been done and acted on by the same town in June, 1889; and if this rule is correct, and xve think it is, then there is no question but that plaintiffs in error are entitled to' a reversal in this case, for there is no evidence anywhere 'in the record even tending to dispute that at least $3,180.78 of this fund had been actually paid out by this committee, and the payment of that amount approved by the town auditing board; besides, the tax collector had gathered two per cent of all of this money paid by the tax payers as a town hall fund, and by the decree of the court he is allowed to retain it, and pay back to each tax payer what he paid in, less two per cent. Third parties’ rights have intervened; it is impossible to place the parties in statu quo in this case, for by the decree the tax payers lose two per cent of xvhat they have paid in, and this committee, who were acting gratuitously, are to be held responsible for $3,180.78, money actually paid out, and damages that will accrue from the several contracts; and at the same time, by this decree, the town of Normal, not having paid one cent, is to have the three lots purchased of Metcalf by this committee, and by this decree three members of this committee are to pay principally all the costs in this case, and the other txvu *519members, notwithstanding the record shows that they were present at nearly all of the committee meetings after the town meeting o£ 1890, and voted and took part in letting the contracts and expending the money, are to be held only for a small amount of the costs, and by this decree would not otherwise be responsible for one farthing of this money that must be paid back. These facts are all so inconsistent and apparent that we can not make them plainer. The decree must be reversed; it can not stand.

There will be no question, as we think, but that the tax was legally levied and collected, and that all action in regard to the town hall was legal, regular and in conformity with the statute up to date of April 1, 1890, and if so, tlie tax being legally levied and collected, can not be recovered back. Swanston v. Ijams, 63 Ill. 165; Building Association v. Chicago, 61 Ill. 439; Falls v. City of Cairo, 58 Ill. 403; Fairfield v. People, 94 Ill. 244; Elston v. City of Chicago, 40 Ill. 514.

Mr. Johit T. Lii.lard, for defendants in error.

A town has a right to reconsider or rescind its former action if third parties’ rights have not intervened.

While satisfied that a town organized under the laws of this State can not legally levy a tax or expend money for the erection of a town hall, as claimed on pages 6 and 7 of the brief of opposing counsel, yet, as that question is wholly foreign to the issues raised by this record, we will pass it without discussion, or citation of the authorities.

The question here is not whether the town of Normal can legally build a town hall, with store rooms, offices, etc., to rent, as appellants urge, but the questien is, must it build such a hall against its own will and protest simply because it lias levied and collected a tax and appointed a committee for that purpose? Or can the town, by its electors in town meeting assembled, reconsider its original purpose, refrain from building, discharge its committee, and refund the money to the tax payers who paid it, so long as the rights of third parties have not intervened?

If a town can legally erect, or legally determine to erect, a *520town hall, e converso, it must be true it can also legally determine that it will not erect a town hall, in other words, change its mind.

If the town has the power to appoint a committee to do for the town certain work, it surely has the power to discharge that committee, being bound, of course, by the authorized acts of the committee performed before its discharge. The corporate power to do necessarily implies the power not to do, or to undo, at least so long as the corporation only is affected by such undoing. A corporation has as full power in the conduct of its affairs as an individual has in the conduct of. 1ns.

Judge Dillon says in his book on municipal corporations, Vol. 1, See. 290: “At any time before the.rights of third persons have vested, a council or other corporate body may, if consistent with its charter and rules of action, rescind previous votes and orders.”

The Supreme Court of Vermont says in Cox v. Town of Tabor, 41 Vt. 28: “A town, like an individual, may change its purposes, and a town may express this change by its vote, and unless some right in another has been acquired, or has vested under its action, no one may complain of the change.”

The same court says in Estey v. Starr, 56 Vt. 690-3: “It is clear a town can rescind its vote before rights of other persons thereunder have attached.” In this case the town had voted to subscribe $66,000 to a railroad company and appointed a committee to carry out the vote, and afterward, at another meeting, the town rescinded its vote.

The Supreme Court of Maine in Gutchell v. Inhabitants of Wells, 55 Me. 34, says: “A town may, at the same or at a subsequent meeting, rescind a vote previously passed, wheneverthe rights of other interested parties have not intervened.”

The Supreme Court of Connecticut in Terrett v. Town of Shannon, 34 Conn., on page 108, says: “The case before us, then, is simply one where a town has passed a vote giving gratuities, which by force of a subsequent act became a legal vote, and which the officers and agents of the town might legally have carried into effect while the vote remained in force, but where, the vote having been rescinded by a subse*521quent one, the officers and agents of the town were deprived of all power or authority to execute it, and yet threatened ” (as plaintiffs in error were doing in this case) “ to do it in violation of their duty and trust. It is very clear that such a case is a proper one for the interposition of the Circuit Court by injunction upon the application of a tax payer of the town,” etc.

The Supreme Court of Illinois in Smith v. Bangs, 15 Ill. 399, decide the principle here involved to the extent that the discharged committee in the case at bar are amenable to the process of injunction which was decreed against them by the court below.

Plaintiffs in error refer to the case of Pond v. Noegus, 3 Mass. 230, and Stoddard v. Gilman, 22 Vt. 560, as holding that a vote to rescind can only be taken effectually, while a tax is in mere resolution, and not after the tax is levied and collected. In neither of those cases had the tax been collected, and the courts only held that a vote to rescind could be taken in such eases. There was a quera suggested in the Vermont case, not rising to even the point of obiter'dictum, as to the effect of a rescinding vote, after the collection of a tax, and the court simply says: “That question it is not necessary now to decide.” It is enough to say that the same court later decided the question of the right to rescind at any time, saving only intervening rights of third parties in the 41st and 56th of Vermont, above cited.

While the fund to purchase or build is under its control, and not pledged by contract to any third party, it would seem on principle, as well as on the authorities, that it could conclude it would not have a town hall, just as clearly as it could determine after it was erected that it would sell it. Why should a court compel the town to go on and build by refusing its right to rescind, when the town can sell the hall the moment it is erected ?

The method invoked in this case is the one prescribed by the courts for protecting tax payers and righting their wrongs. Jackson v. Norris, 72 Ill. 364; Colton v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 Ill. 160; Littler v. Jayne, 124 Ill. 132, and cases cited; New London v. Brainard, 22 Conn. 522.

*522When the town of Normal rescinded, no rights of third parties had intervened.

The only limitation upon the right of a town to rescind the prior actions is the general doctrine of estoppel, viz., it can not take new action so as to cause injury to another who acted on the former steps of the town, but only the party who would be injured by such rescission can object to it. Let us apply it here. If plaintiffs in error were damaged by the rescinding action of the town of Normal they could invoke the doctrine of equitable estoppel to such an extent as would save them harmless from the rescinding action of the town— no further. If some party other than plaintiffs in error were harmed by such rescission, then such parties could themselves only resist rescission by the town to their detriment. But, assuming for the sake of argument that there were parties other than plaintiffs in error who had acquired rights under the first action of the town of Normal, plaintiffs in error, not being in privity with such parties, could not invoke affirmatively, nor in defending this action brought by tax payers, the claims which affected some one else.