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People Ex Rel. Brenza v. Jasper

OPINION FILED SEPTEMBER 24, 1953

THE PEOPLE EX REL. JOHN B. BRENZA, COUNTY COLLECTOR, APPELLANT,

v.

WALTER JASPER, APPELLEE.



APPEAL from the County Court of Cook County; the Hon. EDMUND K. JARECKI, Judge, presiding.

MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 16, 1953.

The county treasurer, as ex officio county collector of Cook County, appeals from a judgment of the county court of that county sustaining objections made by Walter Jasper, a taxpayer, to certain of the taxes levied by the board of education of the city of Chicago for the year 1948.

Appellee objected to some 1110 items, totaling $1,266,440, appropriated for in the educational fund, on the sole ground that the applicable statute makes such items chargeable to the building fund. The items complained of fall into three classes, namely, gas and electricity, school plant supplies, and educational equipment, and where they appear in the 1948 budget they are preceded by the code letters "G," "M" and "O," respectively. The budget index shows that the appropriation items reflected by these code letters are as follows:

"G — Gas — Electricity; * * * M — School Plant Supplies: Cleaning, Hand Tools; * * * O — Educational Equipment: Typewriters, Calculating Machines, Bookkeeping Machines, Sewing Machines."

It is agreed by the parties that such items were properly chargeable to the educational fund prior to the amendment of the School Code in 1947, but appellee insists that by the terms of section 34-57 of the Code as amended, (Ill. Rev. Stat. 1947, chap. 122, par. 34-57,) such items of expense have been transferred to the building fund. The pertinent provisions of section 34-57 are as follows:

"34-57. For the purpose of establishing and supporting free schools for not fewer than nine months in each year and defraying the expenses thereof; for the purpose of building, repairing and improving schoolhouses, or procuring school land, furniture, fuel, libraries, apparatus, building and architectural supplies, for the purchase, maintenance, repair and replacement of fixtures generally used in school buildings, including but not limited to heating and ventilating systems, mechanical equipment, seats and desks, blackboards, window shades and curtains, gymnasium and recreation apparatus and equipment, auditorium and lunch room equipment, and all expenses incident thereto in each district described in this Article, the board of education and the authorities of such district or city, as the case may be, may levy annually * * * a tax for building purposes and the purchase of school grounds * * *. Such board and authorities may levy annually, * * * for educational purposes a tax of not to exceed, * * *. Any sum expended or obligations incurred for the purpose of building schoolhouses, for procuring school land, furniture, fuel, libraries and apparatus, for the improvement, repair or benefit of school buildings and property, for building and architectural supplies, for the purchase, maintenance, repair and replacement of fixtures generally used in school buildings, including but not limited to heating and ventilating systems, mechanical equipment, seats and desks, blackboards, window shades and curtains, gymnasium and recreation apparatus and equipment, auditorium and lunch room equipment, and all expenses incident thereto, shall be paid from that portion of the tax levied for building purposes and the purchase of school grounds, but no part of the salaries or wages of persons employed in connection with the custody, heating or cleaning of school grounds and buildings shall be paid from such tax. * * * Educational purposes, building purposes and the purchase of school grounds, free text books, and school playground purposes, respectively, shall include expenses of administration incidental to each of such purposes."

The appellee contends, and the lower court held, that the appropriations for "Gas and Electricity," to which he objects, were in fact appropriations for fuel, that the appropriations for "Supplies — School Plant" were in reality appropriations for building supplies for the benefit of buildings, and that the appropriations for "Educational Equipment" were appropriations for mechanical equipment or apparatus, all of which the statute makes chargeable to the building fund. The collector, on the other hand, insists that the 1947 amendment did not in any way affect the propriety of charging appropriations for "Gas and Electricity" to the educational fund, inasmuch as they are not used as fuel in this case; that the items appropriated for under "Supplies — School Plant" are for operation of the plants rather than for benefit to the buildings, and therefore chargeable to the educational fund; and that the appropriation for machines used for instructional purposes is clearly within the educational fund and cannot be considered to be the mechanical equipment referred to in the amended statute.

Before considering the issues raised, the arguments advanced by both parties as to the legislative intent in amending section 34-57 make it incumbent upon us to examine the law that section, in effect, succeeded. The former statute, which was section 189 1/8 of the School Law, was enacted in 1941, (Ill. Rev. Stat. 1941, chap. 122, par. 212a,) and, insofar as relevant, provided as follows: "(A) For the purpose of establishing and supporting free schools for not fewer than nine months in each year and defraying all the expenses of the same of every description; for the purpose of building, repairing and improving school houses, or procuring school land, furniture, fuel, libraries and apparatus and for all other necessary incidental expenses in each district, * * * having a population of five hundred thousand or more inhabitants, * * * the board of education and the authorities of such district, * * * shall be authorized to levy annually, upon all the taxable property of the district, * * * a tax for building purposes and the purchase of school grounds * * *; and to levy annually, * * * for educational purposes a tax * * *; provided, further that any sum expended or obligations incurred for the improvement, repair or benefit of school buildings and property shall be paid from that portion of the tax levied for building purposes and the purchase of school grounds, but after the year 1930, no part of the salaries or wages of persons employed in connection with the custody, heating or cleaning of school grounds and buildings and equipment therein shall be paid from such tax for building purposes and the purchase of school grounds."

This court was called upon to construe the prior statute in People ex rel. Schlaeger v. Reilly Tar & Chemical Corp. 389 Ill. 434, and from its terms we concluded the rule to be that building fund taxes could be levied only (1) for the purpose of building, repairing and improving schoolhouses and for purchasing school lands, and (2) for expenses or obligations incurred for the improvement, repair and benefit of school buildings and property; and that educational fund taxes could be levied (1) for the purpose of procuring furniture, fuel, libraries and apparatus, and (2) for meeting all necessary and incidental expenses of every kind, character and description, other than expenses payable from the building fund as prescribed by statute, (or from certain special funds, namely, the free textbook, playground or teachers' pension fund.) In addition, it was stated in the same case that in order to sustain an item levied for building purposes, the taxes so levied must have "a direct, and not a remote or incidental connection with a proper building purpose." This construction was adhered to in People ex rel. Schlaeger v. Riche, 396 Ill. 85, where it was held improper to charge such items as coal, gas and electricity, supplies, refinishing seats and desks, scale repairs and stage curtain repairs, to the building fund, inasmuch as their connection with a proper building purpose was not direct, but only remote and incidental.

Appellee contends that the rule of the Reilly Tar case is no longer applicable because section 34-57 has transferred to the building fund items of expense of the nature there and here involved. Looking to the respective statutes, both before and after the amendment, the clause in question began: "Any sum expended or obligations incurred," and the amendment continues: "for the purpose of building schoolhouses, for procuring school land, furniture, fuel, libraries and apparatus, for the improvement, repair or benefit of school buildings and property, for building and architectural supplies, for the purchase, maintenance, repair and replacement of fixtures generally used in school buildings, including but not limited to heating and ventilating systems, mechanical equipment, seats and desks, blackboards, window shades and curtains, gymnasium and recreation apparatus and equipment, auditorium and lunch room equipment, and all expenses incident thereto * * * shall be paid from such tax." Prior to the enactment of section 34-57, section 189 1/8 provided only that the building fund could levy for "building purposes and the purchase of school grounds" and for "the improvement, repair or benefit of school buildings and property."

A reading of section 34-57 makes it apparent that the items challenged by appellee, namely, gas and electricity, school plant supplies and educational equipment were not, in terms, transferred to the building fund. However, appellee first advances the broad argument that such items are now payable from the building fund as expenses incident to the building purposes set forth in section 34-57. In support of this contention it is urged that since the legislature enacted section 34-57 some six months after the decision in the Riche case, it is to be presumed that it took notice of the construction that items of such nature were "incidental" to building purposes, but payable from the educational fund, and intended that they be charged to the building fund as expenses "incident" to the building purposes stated in the section. We do not impute such a sweeping effect to the amendment nor do we find that the language employed by the legislature is susceptible to the construction that all expenses incidental to building purposes must be paid out of the building fund. The phrase "expenses incident thereto" very logically and grammatically refers to the expenses incident to the purposes listed in the same paragraph, and those purposes are: building schoolhouses, procuring school land, building and architectural supplies, fuel, libraries and apparatus, and the purchase, maintenance and repair of fixtures generally used in school buildings, etc. Expenses incident to building, procuring, purchasing, maintaining, repairing and replacing cannot be said to extend to those expenses of operation which have always been an educational fund charge and which (with the exception of "fuel" procurement) were not mentioned in the amendment. Construing the grant of power to levy taxes strictly, as we must, we find no basis to hold that every expense which might have some incidental relation to a building purpose has now been made a charge on the building fund.

In this respect, it is to be noted that the exact limitation of the Riche case was that a building fund item must have "a direct, and not a remote or incidental connection with a proper building purpose," and it was held that appropriations for "gas and electricity" and for "school plant supplies" did not have the direct connection required to sustain them as proper building fund levies. Nothing in the amended statute requires a different construction or evidences a contrary legislative intent. Appellee arrives at his conclusion by substituting the word "incidental" as used in the Riche case for the phrase "incident thereto" which is the wording of the statute. As appellant points out, and as the Riche case recognizes, an incidental expense may be one that is remote and unessential to the building purposes for which the power to tax is granted but an expense incident to the power to build, to procure, to repair and replace is a sine qua non to the accomplishment of the purposes authorized. It is the latter expenses to which the statute expressly and clearly relates and not to every incidental expense, no matter how remote or indirect from the purposes set forth. We conclude that the rule of the Reilly Tar and Riche cases, that a building fund item must have a direct and not a remote or incidental connection with a proper building purpose, still obtains.

We come now to a consideration of appellee's contention that each of the three items of which he complains comes under one or more of the classes of expense expressly transferred to the building fund by section 34-57. Looking first to the items of "gas and electricity" appellee argues that they are in fact appropriations for "fuel" as that term is used in the amended statute. The facts relating to this item show that following the decision in the Riche case, the board of education appropriated both for "fuel" and "gas and electricity" always as separate items in its educational fund. However, in 1948, because of the enactment of section 34-57 of the School Code, the board appropriated for "fuel" in its building fund but continued to appropriate for "gas and electricity" in its educational fund. The "fuel" appropriated for was wood, coal and oil which were the combustibles employed in the heating systems of the individual school buildings. None of the buildings were heated either by gas or electricity, rather the electricity appropriated for was used for illumination and ...


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