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Collins v. Village of Glen Ellyn

APRIL 29, 1959.

WILLIS E. COLLINS, GLEN ELLYN BUILDING, INC., JAMES A. WAGONER, THEODORE PRESCOTT, PLAINTIFFS-APPELLANTS,

v.

VILLAGE OF GLEN ELLYN, A MUNICIPAL CORPORATION, NORMOYLE AND BERG CO., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page county; the Hon. MEL ABRAHAMSON, Judge, presiding. Reversed and remanded with directions.

PRESIDING JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.

Plaintiffs, electors and taxpayers of the Village brought this suit for a judgment declaring that the contract between the Village and the defendant Normoyle and Berg Co., was void for want of a prior appropriation as required by Section 15-3, Chapter 24 of Illinois Revised Statutes 1955, and sought to enjoin the defendant Village from acting in any way under the contract.

Section 15-3 of Chapter 24, provides as follows: "No contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers of departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities, or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof."

The Village answered the complaint and alleged that at the time the contract was executed there was $90,000 in the waterworks and sewer fund and that subsequently, the city appropriated $67,918.88 to pay the amount the contract exceeded the money received from the sale of the bonds. It also contended that there was no obligation on the part of the Village to pay any sums during the 1957 fiscal year and no appropriation was required prior to the date of the contract.

Normoyle and Berg Co., defendant, filed a motion to dismiss on the theory that no payments were to be made in 1957 and so no appropriation in that year was necessary.

The court allowed the motion to dismiss and entered judgment against the plaintiffs. Plaintiffs appeal from the order dismissing the complaint.

Plaintiffs' complaint should not have been dismissed. According to our interpretation of the plain unambiguous language of the statute, it was just this situation which the statute was intended to protect against.

The Voters of the Village of Glen Ellyn approved the construction of a sanitary sewer system and the issuance of $375,000 in bonds in an election November 19, 1955. About one year later, an ordinance was passed, authorizing the sale of the bonds and ordering that the proceeds of the sale be held separate and apart from the general corporate funds of the City.

Glen Ellyn's fiscal year extends from May 1, of one year, to April 30 of the next year. No funds were provided for the construction of a sanitary sewer system by the Village during the fiscal year commencing May 1, 1956 and ending April 30, 1957.

On March 25, 1957, the Village entered into a contract with the defendant Normoyle and Berg Co., a corporation, for the construction of a sanitary sewer system for the sum of $427,615.19. At that time, there was in the waterworks and sewer fund, the sum of $91,918.88. This was a special fund derived from the village waterworks and sewer system and was not related to the general corporate fund.

The sanitary sewer system was constructed according to the contract, and Normoyle and Berg Co., defendant, was paid the $375,000 available by reason of the sale of bonds.

Defendants contend that if an expenditure is not to be made within the fiscal year, the expenditure need not be included in the appropriation ordinance for that fiscal year and cite as authority, Brown v. City of Evanston, 4 Ill. App.2d 124, 123 N.E.2d 850.

In the Brown case, the city executed a contract in 1948 to purchase a gravel pit. By the terms of the contract, no payment was to be made until 1949 and no appropriation preceded the execution of the contract. Taxpayers sued to set aside the contract and urged that the contract was void by reason of the failure of the city to pass an appropriation concerning the subject of the contract or expense. The court stated, "We cannot agree with plaintiffs' contention because, as already pointed out, there being no obligation of any kind incurred by the city for the year 1948, when the contract was executed, no appropriation was legally required." (emphasis ours)

We consider this statement to contain within itself the basis for its own impeachment. If there was a contract in 1948, then there were obligations incurred by the city in the year 1948. If there were no obligations incurred by the city in 1948, then there was no contract. We recognize rights and duties, contractual in nature, other than the duty to pay money. That no obligation to pay money existed may well be true, but the prohibition is not solely against paying money without an appropriation, but rather, "no contract shall be ...


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