#### John Koons, Appellant, v. City of Mount Vernon et al., Appellees.*

*166Opinion filed March 10, 1924.

Noleman, Smith & Dallstream, for appellant.

Curtis Williams and Conrad Schule, for appellees.

*

Received from clerk of Appellate Court, August 8, 1927.

Mr. Presiding Justice Barry

delivered the opinion of the court;

Appellee Williams became city attorney for the City • of Mt. Vernon, on May 2, 1921, for a period of two years. A city ordinance provided that-he should be entitled to a salary of $50 per month, fees in each case for the violation of an ordinance equal to one-half of the fine, penalty or forfeiture paid in money, and in addition to said salary and fees he should *167lie entitled to charge and receive compensation for all services rendered in connection with special assessment and special taxation cases at the rate of one per cent of the estimated cost of the improvement, but in no case less than $50, nor more than $350, except in cases for the construction of sidewalks where the compensation should not be less than $10, and in case the city council should order a general revision of the ordinances he should be allowed a reasonable compensation for his services in that regard.

During this term of office Mr. Williams was paid his salary of $50 per month. On February 1, 1923, he presented his bill for $2,264.34 for services in seven special assessment cases which was allowed by the city council. Thereupon, appellant, as a citizen and taxpayer of said city, filed a bill to enjoin payment on the ground that it would be an unlawful diversion of the public funds to pay the same. Upon a hearing the court dismissed the bill for want of equity. A taxpayer may have an injunction against the corporate authorities to prevent them from misappropriating the public funds. City of Chicago v. Nichols, 177 Ill. 97; Lindblad v. Board of Education of Normal School Dist., 221 Ill. 261.

Appellant contends that the city attorney is not entitled to additional compensation in special assessment cases because the city council did not comply with Cahill’s St. eh. 24, j[ 89, which provides that a city attorney may receive a salary, fees or other compensation to be fixed by ordinance and when so fixed the same shall not be increased or diminished to take effect during the time for which he was appointed. Section 11 of Art. IX of the Constitution, Cahill’s St. Const. Art. IX, § 11, p. 22, also provides that the fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term. While the statute says that a city attorney may receive a *168salary, fees or other compensation to be fixed by ordinance the council, by the ordinance, says he shall receive a salary, fees and other compensation.

Cahill’s St. ch. 24, If 92, requires city councils, within the first quarter of each fiscal year, to pass an ordinance termed the annual appropriation bill, appropriating such sums as may be deemed necessary to defray all necessary expenses and liabilities of the corporation for .the year. That ordinance is required to specify the objects and purposes for which the appropriations are made and the amount appropriated for each object or purpose. “No further appropriations shall be made at any other time within such fiscal year,” unless under conditions not here involved. Paragraph 94 of said act prohibits the council, or any officer or department of the corporation, from adding to the corporate expenditures, in any one year, anything above the amount provided for in the annual appropriations bill of that year, except as is therein specially provided.

Paragraph 95, Cahill’s St. ch. 24, of said act provides that no expense shall be incurred by any officer or department of the corporation unless an appropriation shall have been previously made concerning such expenses. Paragraph 102, Cahill’s St. ch. 24, requires that all warrants drawn upon the city treasurer shall state the particular fund or appropriation to which the same is chargeable. By paragraph 115, Cahill’s St. ch. 24, ff 115, the council is required, annually, on or before the third Tuesday in September of each year, to ascertain the total amount of the appropriations legally made for corporate purposes and to be collected from the tax levy of that fiscal year, “and, by an ordinance specifying in detail the purposes for which such appropriations are made and the sum or amount appropriated for each purpose respectively, shall levy the amount so ascertained upon all the property subject to taxation within *169the city or village as the same is assessed and equalized for State and county purposes for the current year. ’ ’

We think it is very evident, from the foregoing provisions, that when the legislature declared that a city attorney may receive a salary, fees or other compensation, “to be fixed by ordinance,” it intended to require the city council to make definite and certain the amount to be paid for his services. This is apparent from the provisions that “and when so fixed the same shall not be increased or diminished to take effect during the time for which he was appointed.” Unless the compensation be fixed at a sum certain it cannot be told whether it has been increased or diminished. Both the annual appropriation bill and the tax levy ordinance are required to specify not only the objects for which appropriations are to be made, but also the amount appropriated for each purpose and if the ordinance shows that an uncertain amount is appropriated for some purpose it is invalid in that regard. People v. Arnold Bros., 282 Ill. 305. There-seems to be an exception to that rule in the case of appropriations of unascertained income from license fees. McGovern v. City of Chicago, 281 Ill. 264, but, although not stated, the reason for such an exception must be that in such a case there would be no tax levy required.

Under the ordinance the compensation to be paid the city attorney is uncertain in amount except as to $50 per month and nothing more than that- sum could be legally included in the appropriation bill and the tax levy ordinance for any fiscal year. It could not be known in advance whether any services would be rendered in special assessment cases, the number of such cases, or what the estimated cost of any improvement might be. In one year the salary might be but $600 and for the next year $2,864:34, as claimed in the case at bar. If the council had fixed his salary at $600 per year and the ordinance contained no other *170provision it would not be contended, seriously, that a subsequent ordinance could be enacted fixing his salary for the second year at $2,864.34. The ordinance fixed his salary at $50 per month with a proviso that if he rendered other services usually performed by a city attorney he should receive additional compensation therefor. Does the fact that the provision for. uncertain additional compensation was put in the original ordinance alter the case? We think not. It was simply an attempt to do indirectly what could not be doné directly by a subsequent ordinance. Suppose the. ordinance had not fixed any definite salary other than, to say that he should receive not less than $5 nor- more than $25 every time he was consulted by a city officer, a committee of the council or the board of local improvements in reference to corporation business and that in special assessment cases he should receive compensation on the same basis stated in the ordinance in question. Could it be successfully contended, ;in such case, that the council had fixed his compensation as required by the statute? We think not, for the reason that no definite amount had been fixed.. .To permit the payment of $2,264.34 as additional cqrppensation in the case at bar would be to increase his salary during his term of office in violation of the express prohibitions of the constitution and the statute. If it is permissible to allow a city attorney a salary, fees and other compensation when the statute says he may receive a salary, fees or other compensation we are of the opinion that the amount or amounts to be allowed must be made definite and certain unless, perhaps, when he is to receive a portion of the fines collected because in such case no tax levy would be required.

The ordinance in question provides for additional compensation for services rendered by the city attorney in connection with special assessment. cases. It does not provide that the services shall be such as are necessary to carry the cases to a conclusion. If *171he had started the special assessment cases for which he now-claims compensation- and had died or resigned before any of them reached a hearing he, or his estate, would be entitled to $2,264.34 under the terms of the ordinance because he had rendered services in connection with such cases. If a successor were then appointed to fill the unexpired term and he rendered services in connection with the same cases he would also be entitled to a like sum for his services in that regard. The fact that such a situation might arise shows that the city council has not fixed the compensation at a definite sum as required by the statute. The city attorney may not lawfully demand payment as upon a quantum meruit for services rendered. 22 R. O. L. 532.

An ordinance fixed the compensation of a village attorney at $450 per year with a proviso that in all special assessment cases and in cases in the State and Federal courts in which the village was a party he should be allowed the usual and customary fees of attorneys practicing in such courts over and above the said $450. The village attorney by direction of the board of trustees took charge of certain special assessment cases and performed the necessary services with reference thereto. He sued the village for his services in that regard and recovered a verdict and judgment for $600. The court held that the ordinance did not comply with the requireménts of the statute except as to the $450 per annum which he had received and the judgment was reversed. McGovney v. Village of Melrose Park, 145 Ill. App. 329. We cited that case with approval in Koons v. Richardson, 227 Ill. App. 477, where the compensation of a city engineer was involved.

We are of the opinion that the court erred in dismissing the bill for want of equity. The cause is reversed and remanded with directions to enter a decree in accordance with the prayer of the bill.

Reversed and remanded with directions.