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Village of Monsanto v. Touchette

OCTOBER 25, 1965.

VILLAGE OF MONSANTO, ILLINOIS, PLAINTIFFS-APPELLANTS,

v.

FRANCIS TOUCHETTE, SUPERVISOR, TOWN OF CENTREVILLE, AND EX-OFFICIO TREASURER OF THE ROAD AND BRIDGE FUND OF CENTREVILLE TOWNSHIP, ST. CLAIR COUNTY, ILLINOIS, AND FRANK H. KAZILEK, HIGHWAY COMMISSIONER OF THE TOWN OF CENTREVILLE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County; the Hon. HAROLD O. FARMER, Judge, presiding. Judgment of the Circuit Court of St. Clair County is affirmed.

EBERSPACHER, P.J.

The Village of Monsanto instituted suit against Francis Touchette as Supervisor of the town of Centreville and as such ex-officio Treasurer of the Road and Bridge Fund of Centreville Township and Frank H. Kazilek as Highway Commissioner of the Town of Centreville. The relief sought by plaintiff was a declaratory judgment declaring that the plaintiff Village of Monsanto be entitled to receive one-half of the annual payment made by the Union Electric Company of Missouri to defendant Francis Touchette, Supervisor and ex-officio Treasurer of the Road and Bridge Fund of Centreville Township for the years 1957 through 1961, inclusive, and all years thereafter which annual payment had been made and is being made under the provisions of Illinois Revised Statutes, Chapter 111 2/3, Section 28a, Illinois Revised Statutes of 1961, amended June 15, 1955; and also pursuant to an order, entered on July 20, 1955, in case No. 42613 of the Illinois Commerce Commission.

A temporary injunction was granted restraining disbursement of the 1962 payment pending the outcome of this litigation and the plaintiff prayed that the defendant Francis Touchette as ex-officio Treasurer of the Road and Bridge Fund pay over one-half of said payment amounting to $5,215.84 to the plaintiff forthwith. The trial court denied the relief prayed and entered judgment against the plaintiff for costs; from which judgment plaintiff appeals.

The facts are not in dispute. Prior to amendment of "An Act concerning Public Utilities," Chapter 111 2/3 Ill Revised Statute, by addition of section 28(a), the Town Collector of Centreville Township and the County Collector of St. Clair County, Illinois regularly remitted to the Village Treasurer of Monsanto, Illinois, 50% of the total amount of taxes for road and bridge purposes which they collected on the assessed valuation of the capital stock of Union Electric Power Company. This was done pursuant to the provisions of Chap 121, Sec 65, Illinois Revised Statutes, which, prior to its amendment on June 8, 1959, read in part as follows, to wit:

"All items of tax levy of any town or district authorized by Sections 56 and 58 of this Act shall be extended by the county clerk as one tax upon the collector's book and shall be paid to the treasurer of the road and bridge fund by the collector as fast as the same is collected, except such rate per cent as shall be allowed for collecting same; provided that one-half the tax required to be levied in Section 56, on the property lying within a city, village or incorporated town in which the streets and alleys are under the care of the corporation shall be paid over to the treasurer of the city, village or incorporated town, to be appropriated to the improvement of roads, streets and bridges, either within or without the city, village or incorporated town, and within the township under the direction of the corporate authorities of the city, village or incorporated town: . . ."

The omitted portion of section 65 contains certain provisions with which we are not here concerned.

After Chapter 121, Section 65, Illinois Revised Statutes was amended in June, 1959 by enactment of the Illinois Highway Code, the amended section being chapter 121, sec 6-507, the pertinent part of which reads as follows:

"All items of tax levy of any district authorized by Sections 6-501, 6-503 and 6-504 of this Code shall be extended by the county clerk as one tax upon the collector's book and, except as hereinafter provided in this Section, shall be paid to the treasurer of the district by the collector as fast as the same is collected, other than such rate per cent as shall be allowed for collecting the same.

"One half the tax required to be levied by Section 6-501 of this Code, on the property lying within a municipality in which the streets and alleys are under the care of the municipality shall be paid over to the treasurer of the municipality, to be appropriated to the improvement of roads or streets, either within or without the municipality and within the road district under the direction of the corporate authorities of the municipality. . . ."

Following the enactment of section 28a of "An Act concerning Public Utilities," (Chapter 111 2/3 Ill Revised Statute) in 1955, the Union Electric Company of Missouri instituted proceedings before the Illinois Commerce Commission pursuant to section 28a whereby it sought approval by the Commission for the transfer of all of the property, assets and franchises of Union Electric Power Company. These proceedings were in Case No. 42,613 before the Illinois Commerce Commission and on July 20, 1955, the Commission granted consent, authority and approval for the acquisition by Union Electric Company of Missouri of such property, assets and franchises under the conditions as set forth in section 28a.

Section 28a, supra, is as follows:

"If a corporation incorporated under the laws of a foreign state shall petition the Commission for authorization to acquire by purchase, lease, merger, consolidation or otherwise all or substantially all the franchises, licenses, permits, plants, equipment, business or other property of a public utility incorporated under the laws of Illinois, whose capital stock is subject to assessment under the provisions of the General Revenue Law of Illinois, the Commission shall impose, as a condition to such acquisition, payment annually by such foreign corporation, its successors or assigns, of an amount equal to the amount of taxes legally extended against the assessed valuation of the capital stock of such Illinois public utility in the year immediately preceding the year in which such acquisition occurs. Such annual payment shall be in addition to any other fees and taxes required by law. If such acquisition occurs prior to April 1 in any year, the first such annual payment shall be made in the next calendar year. If such acquisition occurs on or after April 1 in any year, the first such annual payment shall be made in the second following calendar year. The obligation to make such annual payments shall continue as long as such foreign corporation, its successors or assigns, owns, controls, operates or manages within the state of Illinois the franchises, licenses, permits, plants, equipment, business or other property of the Illinois public utility so acquired, or any replacement, renewal or extension thereof or addition thereto. Such annual payment shall be made to the taxing districts whose territorial limits, at the time such payment is required to be made, include the place where the principal office of such Illinois public utility was located at the time of such acquisition, for use for such corporate purposes of such taxing districts as their governing bodies may order. The amount of the payment to each of the several taxing districts shall be in the same ratio to the total required annual payment as the ratio of the rate at which taxes of such taxing district for the preceding year have been extended to the total of the rates extended for all of the taxes of such taxing districts for the preceding year. Such annual payment shall be made by such foreign corporation, its successors or assigns, to the respective treasurers of such taxing districts within 30 days from the date of delivery by the County Clerk to the Collector of the books for collection of taxes. Such foreign corporation, its successors or assigns, shall within 30 days after such annual payments have been made, file with the commission duplicate receipts of the respective treasurers of such taxing districts to which such payments were made."

Prior to the acquisition of the properties of Union Electric Company of Missouri, the assessment on the capital stock tax of Union Electric Power Company was paid by it to the Town Collector of the Town of Centreville and the County Collector of St. Clair County, Illinois, who disbursed said taxes to the various taxing districts within the territorial limits of the Village of Monsanto, Illinois, where the principal office of Union Electric Power Company was located. The total amount paid to the various taxing districts for capital stock tax for the tax years 1954 and 1955 was $402,187.05, and the annual payment made by the Missouri Corporation was in an identical amount each subsequent year.

Every taxing district situated wholly or partly within the Village of Monsanto has since August, 1957, received its proportionate share of the annual payment made by Union Electric Company of Missouri except that the defendant township treasurer paid no part of ...


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