The facts in this case were stipulated in the record. Prior to the preparation of the estimate of assets and liabilities, as of January 1, 1939, contained in the annual appropriation *Page 591 bill, pursuant to Illinois Revised Statutes, 1941, chapter 24, paragraph 102, the city, by an ordinance duly passed, borrowed the sum of $894,899.48 from the undistributed-tax fund for the use of the general corporate fund. It had the right to do that.(People ex rel. McDonough v. New York Central Railroad Co.355 Ill. 80; Gates v. Sweitzer, 347 id. 353.) Having lawfully borrowed said funds it became obligated to repay the same, from the general corporate fund to the undistributed-tax fund, from which they were borrowed.
The sole question raised by appellee in the court below and on this appeal was whether the obligation of the city to repay said amount, from the general corporate fund to the undistributed-tax fund, should have been included in the estimate as a liability of the city. It was argued that such item was improperly included in the estimate as a liability; that if it was properly included as a liability, the right of the city, as owner of the undistributed-tax fund, to receive the money borrowed, when repaid to that fund, should also have been included as an asset.
Upon the record, as made in the trial court and as presented to this court, clearly the liability of the city to repay the borrowed funds, was a liability of the city, payable from the general corporate fund and was properly included in the estimate, as a liability. It is equally clear that the rights of the city, as the owner of the undistributed-tax fund, to receive the borrowed money when repaid, was an asset of the city. It was not, however, an asset belonging to the general corporate fund, unless the funds borrowed belonged to that fund. If the borrowed funds were raised and appropriated for purposes other than the general corporate fund, the right to receive the same, when repaid, could not be included in the estimate as an asset belonging to the general corporate fund.
No question was raised or argued by appellee as to the right of the city to hold money in the undistributed-tax *Page 592 fund. Neither was any question raised as to the right of the city to borrow from that fund for the use of the general corporate fund.
On petition for rehearing appellee raised, for the first time, the question of the right of the city to hold and accumulate money in an undistributed tax fund. This was a new point, raised for the first time in the petition for rehearing.
The effect of the majority opinion is, without definitely holding, that the funds here involved were improperly held in the undistributed-tax fund, and are, therefore, treated as assets belonging to the general corporate fund. This is the effect of the opinion notwithstanding all of said funds may have been raised and appropriated for other purposes.
The opinion makes it clear that the purposes for which the money in the undistributed-tax fund was raised, cannot be determined from the record. It holds, in effect, that in the absence of any showing as to the purposes for which said funds were raised, they must be treated as having been raised and appropriated for general corporate purposes. This places upon the city the burden of sustaining the tax levied and ignores the settled rule that the burden of showing the invalidity of a tax objected to is always on the objector.
However desirable it may be to establish a rule imposing a limitation upon the right of the city to accumulate money in an undistributed-tax fund, no question of that kind is involved in this case or presented by the record, on which the case was submitted. The funds borrowed from the undistributed-tax fund may all belong to special funds which cannot be lawfully used for general corporate purposes. In any event, if any of the borrowed funds would, when distributed, belong to the general corporate fund, the burden was on the objector to establish that fact. Its failure to do so neither warrants nor justifies placing the burden on the city to sustain the tax by showing that the *Page 593 borrowed funds did not belong to the general corporate fund when there was no attempt by the objector to challenge the tax on that ground, or to establish its invalidity by evidence. No such question was ever raised or presented until on rehearing. The opinion concedes, as it must, that there is nothing in the record from which it may be determined that any part of the borrowed funds were raised or appropriated for, or would ultimately be distributed to, the general corporate fund. If the taxes were objected to on that ground the burden of sustaining the objection would be on the objector. This is elementary.
As I view it, the effect of the opinion is that in a total absence of evidence or facts, concerning the character of the funds borrowed, the burden is placed upon the city, in order to sustain a tax, presumed to have been lawfully levied, by showing that none of the funds involved may ever be properly distributed or belong to the general corporate fund. This is not in accordance with my understanding of the rule which has been followed in cases involving tax objections from time immemorial. If it is the purpose of the opinion to establish the proposition that the city may not borrow from the undistributed-tax fund, funds which, when distributed, will ultimately belong to the corporate fund, such holding should be made clear from the opinion. In that event, obviously the objection to the taxes should not be sustained on this record, where the question is not involved. The cause should be remanded to the trial court with directions to hear evidence as to the character of the borrowed funds and the purposes for which they are raised and to which they were appropriated. For these reasons I am unable to agree with the majority opinion. *Page 594