dissenting:
I do not concur with the majority of the court in the decision of this case, for the following reasons:
It is claimed that the judgment is void because it was rendered in part for city taxes of the city of Shawneetown, and the city council failed to pass an appropriation ordinance in the years 1875 and 1876, as required by law. I do not concur in this view. It is not entirely clear, from the evidence introduced on this branch of the case, that the city council failed to pass an appropriation ordinance within the first fiscal quarter, as provided by the statute, for these years; but, conceding the fact to be sufficiently proven, is the judgment void when called in question collaterally, as here ? The annual election in cities and towns organized under the general Incorporation law, is required to be held on the third Tuesday of April, in each year. The fiscal quarter in such cities, unless otherwise provided by ordinance, shall commence at the time provided for the annual election. Section 89, of chapter 24, of the Bevised Statutes, provides that the city council shall, within the first quarter of the fiscal year, by ordinance, appropriate such sums as may be necessary to defray all necessary expenses and liabilities of such- corporation, which ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each purpose, and no further appropriation shall be made during the fiscal year unless authorized by a majority of the legal voters of the city, by vote or petition. This section of the statute, as its reading plainly shows, has nothing whatever to do with the levy of city taxes by the corporate authorities. The power under which a levy may be made is conferred by section 111, which declares: “The city council * * * may assess and collect taxes for corporate purposes, in the following manner: The city council * * * shall, on or before the second Tuesday in September (August) in each year, ascertain the total amount of appropriations for all corporate purposes, legally made, and to be collected from the tax levy of that fiscal year, and, by ordinance, levy and assess such amount, so ascertained, upon the real and personal property within the city, * * * subject to taxation, as the same is assessed for State and county purposes. * * * A certified copy of such ordinance shall be filed with the proper clerk of said county, ” .etc. The levy in the years 1875 and 1876 was made in conformity to this requirement of the statute.
But it is argued, as the city council failed to pass an appropriation ordinance during the first quarter of the fiscal year, the tax was illegal and the judgment void. Had the failure of the city council to pass an appropriation ordinance increased the taxes of the property owner, or enlarged the burdens of taxation, or rendered the taxes unequal or unjust, we can see a gtiod reason why the failure to pass such an ordinance ought, in justice, to render the tax levy and judgment illegal and void. But such was not the case. So far as appears, not a single tax-payer was in the least injured by the failure of the city council to discharge a duty imposed by statute. The purpose of section 89 was not so much for the protection.of individual rights, as it was to guard the rights of the public. The protection of public interests was aimed at in imposing this official duty upon the city council. It was doubtless intended as a limitation upon the expenditure of the public money, without regard, particularly, to the levy and collection of taxes. As to the effect of a disregard of a requirement of this character, in Cooley on Constitutional Limitations, 520, in note 2, will be found the following: “It appears to us that where the requirement of the law which has failed of observance was one which had regard simply to the due and orderly conduct of the proceedings, or to the protection of the public interest as against the officer, so that to the taxpayer it is immaterial whether it was complied with or not, a failure to comply ought not to be recognized as a foundation for complaint by him. But those safeguards which the legislature has thrown around the estates of citizens, to protect them against unequal, unjust and extortionate taxation, the courts are not at liberty to do away with by declaring them non-essential.”
If the city council had passed an appropriation ordinance, the taxes would not have been diminished. How, then, was the tax-payer injured by a failure to discharge this duty? It is true the omission to pass the ordinance was an irregularity in the proceedings, and it may be that a tax-payer might enjoin the disbursement of the taxes where the council has failed to adopt an appropriation ordinance. The object of section 89, as is apparent from its language, is to limit and confine the city council, in the disbursement of public money, to such sums as may have been set forth in an appropriation ordinance. What is embraced in such ordinance they may spend for the purpose specified in the ordinance, and no more. But what has such an ordinance to do with the levy and collection of taxes ? As heretofore said, section 111 authorizes a levy, and although the appropriations may not have been made within the precise time required by section 89, I think, where the city council ascertains the amount of the appropriations and makes the levy within the time specified in section 111, that levy may be sustained. The proceedings may not be entirely regular, but in order to cure an irregularity in the proceeding which does not affect the substantial justice of the tax, section 191 of the Revenue law was enacted, which declares that “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof. ” This section seems .broad enough to cure the irregularity complained of in the present ease. Under this section, where an error or irregularity occurs in the proceedings of any of the officers in the assessment, levying or collection of the taxes, which does not affect the substantial justice of the tax, such error will not impair the validity of the proceedings. Here, the levy was not increased because of the failure of the city council to pass the appropriation ordinance within the first quarter of the fiscal year. No man’s taxes were larger, or smaller, or more burdensome. Indeed, so far as appears, the tax levy was precisely the same as it would have been had the appropriation ordinance been duly passed. How, then, was the substantial justice of the tax affected ? The answer is obvious. If not affected, then the omission or error of the city council was cured by the section cited.
In Buck v. The People, 78 Ill. 560, and in Chiniquy v. The People, id. 572, where local taxes were not levied and returned to the clerk in time, it was held the error in the proceedings did not affect the substantial justice of the tax, and it was cured by section 191. This court said in Chiniquy v. The People, 78 Ill. 577: “The amendment introduced into the 191st section of the present Revenue law has produced a radical change in proceedings to recover judgment for delinquent taxes, and has overruled or modified most if not all our previous decisions on the questions thus arising. ’’ In Thatcher v. The People, 79 Ill. 602, it was said: “Nearly if not all our previous decisions have been abrogated as rules for the determination of cases arising after the adoption of the amendment.” In Fisher v. The People, 84 Ill. 496, in construing section 191, the court further said: “This section we have construed as working a radical change in the policy of the law in respect to judgments for delinquent taxes, and rendering inapplicable all former decisions holding to great strictness and literalness in following the language of the statute in such cases.” Raly v. Quinn, 76 Mo. 273, a case involving the construction of a statute in that State relating to an error in a proceeding where land was sold for taxes, will be found to be in point here. .
Mr. Chief Justice Scholfield, also dissenting.