APPEAL from the Circuit Court of Lake County; the Hon. Judges
ALBERT S. O'SULLIVAN, MEL ABRAHAMSON, and THOMAS J. MORAN,
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1963.
This appeal, involving the revenue, is prosecuted by the plaintiff, Ralph Bowman, from orders of the circuit court of Lake County dismissing his complaint and amended complaint brought against the county of Lake, its clerk, its board of supervisors and the Lake County Public Building Commission, and from an order denying his motion to file a further amended complaint.
Pertinent factual background, gathered from the pleadings, briefs and exhibits, shows that by an election held on November 6, 1956, a majority of the voters of the county voted to eliminate the office of township collector. It was anticipated that the elimination would increase the earnings of the office of the county collector by approximately $500,000 per annum and in anticipation of a favorable referendum, (and apparently as the result of public inquiry,) the county board of supervisors, on October 16, 1956, passed a resolution stating in substance that the money would be devoted to such needed "capital expenditures" and "expanded county services" as might be approved by the board, and that when the additional funds became available "no levy shall be approved by this Board, which when added to the balance on hand at the end of the fiscal year, plus anticipated earnings from other sources during that year, shall produce an amount in excess of the budgeted needs of Lake County."
The next event of consequence occurred on February 9, 1960, when, under authority of the Public Building Commission Act, (Ill. Rev. Stat. 1959, chap. 34, pars. 3301-3325,) the Lake County Public Building Commission was formed by the board of supervisors for the purpose of constructing a new county courthouse. Shortly thereafter, as authorized by section 13 of the act, (Ill. Rev. Stat. 1959, chap. 34, par. 3313,) the county entered into a contract with the commission to transfer the present courthouse land to the commission for use as a building site. On December 14, 1960, as the result of a representative suit brought by the State's Attorney in the name of and on behalf of the People, a decree was entered in the circuit court of Lake County which found that the commission was legally and properly constituted, that the county had the authority to transfer its land to the commission, that the contract between the county and commission was legal and binding, and that the act relating to transfers of real estate by municipal corporations (Ill. Rev. Stat. 1959, chap. 30, pars. 156-158a,) did not apply to the transfer. No appeal was taken from this decree.
On February 6, 1961, the board of supervisors conveyed the land to the commission. Thereafter, in their 1960-1961 appropriation ordinance, again proceeding under authority of section 13 of the Public Building Commission Act, the board made a cash grant of $200,000 to the commission, and in the 1961-1962 appropriation ordinance another cash grant of $450,000 was approved. These sums were in fact transferred to the commission in each of the fiscal years. The 1962-1963 appropriation ordinance approved a further cash grant of $500,000 and, as the matter comes to us, there are conflicting manifestations as to whether this sum has been transferred. In any event, it was on January 7, 1963, that plaintiff filed the taxpayer's suit which has provoked this appeal.
Plaintiff's original complaint was one for declaratory judgment but it was dismissed January 24, 1963, on motion of defendants and he was granted leave to file an amended complaint. Shortly thereafter, plaintiff filed an amended complaint in equity which, on May 8, 1963, was also dismissed on motion of the defendants. And while plaintiff now seeks review of both orders of dismissal, our consideration of the first order may be at once eliminated from the appeal. Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. (Wright v. Risser, 290 Ill. App. 576; Canlow v. Foute, 335 Ill. App. 574; see also: Wende v. Chicago City Railway Co. 271 Ill. 437; Precision Extrusions, Inc. v. Stewart, 36 Ill. App.2d 30.) Here, an examination of the two pleadings leaves no doubt that the original complaint was abandoned and withdrawn. Indeed, plaintiff completely changed his form of action in the amended complaint.
The first count of the amended complaint, which we find to be replete with conclusions, first alleged the election eliminating the office of township collector and the resolution of the board, then alleged that the board had, since the elimination of such office, accumulated the additional funds realized in a surplus account without designating the purpose thereof, and that in each year since 1957 the board had levied taxes which "failed to utilize" the accumulation in the surplus fund. Other allegations set forth the creation of the Lake County Public Building Commission; that the board had transferred public funds and public land to the commission; and that there is at the present time the sum of $500,000 accumulated in the surplus account, which sum the 1962-1963 county budget has earmarked for transfer to the commission. Continuing, the count alleged in substance that the accumulation of surplus funds was unlawful, an abuse of discretion, fraudulent, ultravires, and in contravention of the 1956 resolution of the board; that the accumulation resulted in "appropriations" in excess of corporate needs; and that the transfer of funds to the commission was beyond the scope of the corporate authority.
The concluding paragraph of count I, which we set forth in full for purposes of subsequent discussion, alleged the following:
"That under the Public Building Commission Act (Ill. Rev. Stat., Chap. 34, Sec. 3318), the Lake County Board of Supervisors is required to levy a direct annual tax on the full, fair cash value of all real and personal property within Lake County, which is not exempt from taxation, which will be sufficient to pay the annual rent on the lease which the Lake County Board of Supervisors is about to enter into for the rent of a building to be erected on property formerly owned by the County of Lake; that since the amount of the annual rental fee is to be determined by the Public Building Commission, which in turn is determinative of the tax to be levied and collected, that the subject Section of the Public Building Commission Act is unconstitutional in that it grants the power to determine the amount of tax to an executive branch of the government; that under the circumstances hereintofore referred to, i.e., the transfer of public funds and lands to the Lake County Building Commission, the action required to be taken by the Lake County Board of Supervisors in levying the tax as aforesaid will result in two taxes for the same purpose in violation of the due process clause of the State and Federal Constitution; that the said tax will exceed the maximum fixed by statute without the required favorable vote at a referendum; that said tax is for a general corporate purpose and must be included in the corporate purpose rate statutory limitation; that said tax will result in a rate in excess of the maximum rate prescribed by statute and the Illinois Constitution; and that the statute authorizing the levy of said tax is evasive of and in contravention of the Federal and State Constitutions."
Count II of the amended complaint realleged certain parts of count I, then alleged that the county had transferred funds totaling $650,000 and public lands valued at $1,000,000 to the commission, and charged that such transfers were unauthorized, illegal and void. A concluding paragraph repeated verbatim the concluding paragraph of count I heretofore quoted. The remaining count, count III, likewise alleged the transfer of cash and land to the commission and alleged, in substance, that the acceptance of land and cash from the county was beyond the scope of the statutory powers of the commission, and that their acceptance by the commission "is sanctioning a statute impairing the obligation of contract as evidenced by * * *" the county board's resolution of October 10, 1956.
At its conclusion the amended complaint alleged that plaintiff had no remedy at law as to each of the counts and prayed for injunctive relief restraining the county from accumulating funds and transferring funds to the commission; restraining the commission from accepting funds from the county; and directing the commission to restore and return to the county the funds and land it had already received.
Defendants filed a motion to strike the amended complaint and to dismiss the action for want of equity, alleging in substance that conclusions were pleaded in certain respects, that certain of the allegations were false, frivolous and incorrect statements of law; that plaintiff was guilty of laches; and that the prior decree approving the transfer of land to the commission was res judicata to that issue. Following hearing and argument, the trial court, after taking judicial notice of the Public Building Commission Act and causing the prior decree, the October, 1956, resolution, and the pertinent appropriation ordinances to be made a part of the record, sustained the motion to strike and entered a final order ...