Thorp v. King , 1891 Ill. App. LEXIS 305 ( 1891 )

Boggs, J.

It is settled by the case of Greely v. People, etc., 60 Ill. 19, that a town in a county under township organization may lawfully build a town hall. It is equally well settled that such town, like an individual, may change its purpose and rescind its former action unless some right in another has been acquired or has vested under its action. Dillon on Municipal Corporations, Sec. 290; Cox v. Town of Tabor, 41 Vt. 28; Estey v. Starn, 55 Vt. 690; Gretchell v. Inhabitants, etc., 55 Me. 433.

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. Appellants urge, however, that the action of the annual town meeting of the town of Normal, April, 1890, rescinding the order and action of the special town meeting of June, 1889, which provided for the erection of a town hall, is illegal because, first, there was no notice given that such rescission was contemplated, or was to be considered by the meeting, and second, because third persons had acquired rights and vested interest in and under the order and action sought to be rescinded. The annual town meeting is required by a general law of the State to be convened in each town ohfilie first day of April in each year at the place appointed in such town for such meeting, and is, as the statute declares, held for the purpose of electing town officers, and for the transaction of the business of the town. Sec. 1, Art. 6, Chap. 139, Revised Statutes.

A special town meeting can only be held if certain specified officers and fifteen votéis of the town file with the town clerk a statement in writing setting forth the object of such meeting. Sec. 7, Art. 6, Chap. 139, R. S.

The town clerk is required by the second section of the same article to give notice only of the time and place of holding the annual town meetings; but if a special town meeting is called this official is required by the ninth section of the article to set forth in the notice not only the time and place of the meeting, but also a statement of the object and purpose for which the meeting is called; and the further provision of the same section is that' “No business shall be done at a special meeting except such as is embraced in the notice.”

The power and jurisdiction of the annual town meeting does not depend upon anything stated or omitted as to its object in the notice of the clerk.

The law invests the annual meeting with full power to transact all the business of the town, and notice only of the time and place of its meeting is required by the statute. We do not wish to be understood as holding that even this statutory notice of the annual meeting is necessary.

In The People v. Jackson County, 92 Ill. 441, it is said: “ Where the time for holding a general election is fixed by law, the law operates as a notice of the time, and even if the notice be omitted, the election is valid.”

The same principle, we think, is applicable to the annual town meeting, that is, that all electors are charged with notice of the time when such meetings will be held, and also with knowledge that any and all corporate business of the town may then be lawfully transacted. “ The theory of annual town meetings,” it is said by our Supreme Court in C. & I. R. R. Co. v. Mallory, 101 Ill. 583, “ is that the corporate body of the town is present for the purpose of transacting, and is competent to transact, all corporate business of the town not especially delegated to specified officers.”

In our opinion, the annual town meeting of the town of Horma! of April, 1890, 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 the special meeting of June 22, 1889, though the notice of the town clerk as to the convening of such meeting contained no statement that such was the object, or one of the objects, of the meeting, unless such rescission illegally affected some vested right or interest of another. We may then inquire who, if any one, was unjustly affected by such rescission ? ”

It is urged that the contract obligations of the town through its building committee, with Metcalf, was impaired and destroyed. Prior to this meeting, negotiations for the purchase of lots upon which to erect the town hall, were pending between the committee and Metcalf. Metcalf had offered the committee two lots forty-two and one-lialf feet in width, at §10 per foot, and the committee, as a counter proposition, offered to take three lots, having a total width of sixty-two and one-half feet, at the price named. Metcalf replied that there was a cloud upon the title to the forty-two and one-half feet he proposed to sell, and that he was taking steps to remove it, and that he desired information from the committee as to any proposed change in the building to aid him in answering, as they wanted more of his property than he had offered to sell. It seems that Metcalf and the individual members of the committee after this and before the April annual meeting, had informal conversations about the proposed purchase of his property, but the records of the committee do not disclose that at the date of the annual town meeting any further action had been taken about it. On the 23d day of May, 1890, more than a month after the annual meeting had rescinded all action looking toward the building of a town hall, the building committee ordered that an abstract of the title to Metcalf’s lots be procured, and if it proved satisfactory, that a deed from Metcalf should be accepted and an order drawn in his favor in payment. Metcalf executed a deed June 3, 1890, and the committee formally accepted it June 7, 1890. Manifestly, Metcalf and the committee had not, prior to the annual meeting, completed a valid and subsisting contract.

If, however, a purchase and conveyance of the lots had been :shown to have been made before the annual meeting, it would only follow that the rescission would not operate to affect that transaction. The fact that the town had become the owner of the site for a hall, would not bind the town irrevocably to a .proposition to build a hall upon it. The contract with Metcalf was coupled with no such condition. The deed made by him contained no such'requirement. No reason is perceived why 'the corporate mind may not change as to the use it will make •of corporate property, as might the mind of an individual.

• No contract for the erection of the building or any part of the work of its construction had been entered into when the ■annual meeting decided not to build, and the fact that the ■building committee afterward contracted for its construction ■and paid certain sums of money under such contract, could not operate retroactively and make invalid the action of the town meeting.

It is insisted that tax payers who had paid taxes levied to raise a fund to build the town hall, had rights which debarred •the town from rescinding the order to build. Decisions of the Supreme Court of Massachusetts and Vermont are cited as supporting this doctrine. We have examined those cases and without incumbering this opinion with a recitation of the particular facts in each case, it may be said .that, in our opinion, they do not establish the principle contended for. ■ The general principle held by these cases is that a town can not rescind a contract, and that a tax payer who had paid taxes levied for a specified purpose, may require that the fund thus raised be applied to such purpose, that is, not diverted to and used for other enterprises or objects. We find no authority for the view that a tax payer who had paid taxes levied for a certain purpose by a town, becomes thereby invested with such right as to deprive the town, which had all its power from a majority of the legal voters of the town, from withdrawing from the completion of such purpose. All that is required in such cases is a restitution to such tax payers.

It is not contended that the committee paid out any money without knowledge of the rescission, by the annual town meeting, of the former action of the town. The proof shows that each member of the committee was personally present at the annual town meeting.

The members of the committee had no vested right in the office or position of committee men, so as to prevent the town from abandoning the project of building a hall, or from discharging and dissolving the committee.

It therefore does not appear that when the town of hTormal rescinded all former action looking toward the building of a town hall, that any person had acquired rights under or because of such former action. The proof shows that the auditing board of the town audited the disbursements of the committee and accepted the same as valid appropriations from the building fund. Whatever effect such action of the auditing board may or might have in the way of saving and protecting the committee, if called upon to account to the town for the fund,' it could have no bearing upon the question of the power of the annual town meeting to act. We do not find that the decree appealed from directs that the fund be disposed of in any way. That portion of the decree is as follows :

“ The other question, of refunding the said money raised as a special fund for town hall purposes, should be reserved for further consideration and determination in case other and proper parties are made defendants.”

All, therefore, that has been said by counsel concerning the injustice and illegality of a supposed plan of restitution to the tax payers can have no application to the record before us.

The adjudication of the County Court in the matter of the application of the county collector for judgment against the property of certain of the appellees (five in number), for the taxes levied to build this town hall, is relied upon as a bar or estoppel in this proceeding.

■ To create a complete or partial bar, the prior judgment must be between the same parties, standing in the same capacity or else between their privies. Wells on ¡Res Adjudicata, Sec. 15.

The parties here are not the same as in the proceeding before the County Court. The cause of action was not the same. The appellants were not parties to the proceeding in the County Court, and we find no reason for supposing that the judgment of that court in any respect operates as a bar on an estoppel of this proceeding.

Finding no error the decree is affirmed.

Decree affirmed.