165 N.E. 211 | Ill. | 1929
This is an appeal from a judgment of the county court of Clinton county confirming a special assessment for the cost of construction of the local improvement of Livingston street, in the city of Carlyle. Numerous objections were filed by the owners of property assessed, and on August 11, 1928, all the objections were overruled and a judgment of confirmation of the assessment was rendered, from which the objectors have appealed.
Among other objections filed was one that the ordinance referred to in the petition was not adopted by the city council of the city of Carlyle and was therefore void. The supposed ordinance attached to the petition was introduced in evidence over the objection of the appellants, and purported to be an ordinance not of the city council but of the board of local improvements of the city of Carlyle. As set forth in the abstract it begins with the words, "Be it ordained by the board of local improvements of the city of Carlyle, Illinois, that a local improvement be, and the same is hereby originated to be made by special assessment within the city of Carlyle, State of Illinois." A description of the proposed improvement follows. Section 2 reads: "That the recommendation of the board of local improvements of the *564 city of Carlyle, Illinois, providing for said improvement, together with the estimate of costs thereof, made by the president of said board, both hereto attached, be and the same are hereby approved." Section 3 provides that the whole cost of the improvement, including the sum of $2422.29 as costs of engineer's services connected with the improvement and $4844.58 as court costs and necessary lawful expenses, exclusive of the costs of engineering services, and the cost of making, levying and collecting the assessment, be paid for by special assessment upon property benefited, to the amount that the property may be legally assessed therefor. The fourth and fifth sections provide for the division of the assessment into ten installments and the issue of bonds payable out of such installments. Section 6 directs the mayor of the city to file a petition in the city's name in the county court of Clinton county praying that steps may be taken to levy a special assessment for the improvement in accordance with the provisions of the ordinance and the laws of the State. The abstract shows no certificate attached to the ordinance, but at the bottom appears the following:
"Passed at a regularly called and held meeting of the city council of the city of Carlyle, this 1st day of June, A.D. 1928, for the specific purpose of considering this ordinance and other matters. Voting yea, Henry C. Cavin, John D. Erlinger, John L. Moran; voting nay, J.H. Donnewald, James J. Gray, John L. Higgins. Tie vote. Mayor Theo. H. Gross voted yes. Carried.
J. ARCH MEANS, City Clerk."
Objection was made to the introduction of the supposed ordinance on the ground "that the ordinance is not the ordinance of the city council of the city of Carlyle, and on the further ground that the enacting portion of the ordinance is not proper, and on the further ground that it purports to have been passed by a tie vote, with the mayor casting the vote."
It is ordinarily not necessary to prove the ordinance in a special assessment proceeding. The statute requires a *565
copy of the ordinance, certified by the clerk under the corporate seal, to be filed with or attached to the petition. The ordinance so attached to or filed with the petition becomes a part of the petition and therefore a part of the record. (City of Marengo v. Eichler,
Section 2 of article 5 of the Cities and Villages act prescribes that the style of the ordinances in cities shall be, "Be it ordained by the city council of ............." The ordinance relied on in this case contains no such expression of the authority by which it is enacted. It does not profess on its face to be enacted by the authority of the city council of the city of Carlyle but purports to be ordained by the board of local improvements of the city of Carlyle. The board of local improvements has no authority to make local improvements by special assessment, special taxation or otherwise, or to adopt an ordinance for such purpose. Its function is to do in the first instance certain preliminary work, mainly in ascertaining facts necessary for the council to know before determining whether or not to provide for the making of an improvement and in recommending to *566
the council the passage of an ordinance for that purpose, (Givins v. City of Chicago,
It is said in Hibbard, Spencer, Bartlett Co. v. City ofChicago,
In Chicago and Northern Pacific Railroad Co. v. City ofChicago,
In Galt v. City of Chicago,
In People v. Mount,
It is a general rule that when the legislature grants to a municipal corporation power to do any act and prescribes the manner in which the power shall be exercised, the power must be exercised in the manner stated in the grant and not otherwise. In Chicago Union Traction Co. v. City of Chicago,
In Bullis v. City of Chicago,
Section 11 of article 4 of the constitution prescribes that the style of the laws of this State shall be: "Be it enacted by the People of the State of Illinois, represented in the General Assembly." The requirement of section 2 of article 5 of the Cities and Villages act is of the same character and the same effect in regard to the style of the ordinances of the city as the constitutional provision in regard to the laws of the State, though the language is adapted to the difference in organization and action of the General Assembly and the city council; and the law with reference to the validity of legislative action as affected by the respective provisions is the same, the charter of the city, or the statute by which it is created, being its organic act, bearing the same general relation to the ordinances of the city as the constitution, which is the organic act of the State, bears to its statutes.People v. Mount, supra.
The requirement of the constitution in regard to the style of the laws of this State has been the same since its organization. (Const. of 1818, art. 2, sec. 17; Const. of 1848, art. 3, sec. 20.) We said in People v. Bowman,
The effect of a failure to comply with the requirement of the constitution in regard to the style of laws was considered in the case of Burritt v. Commissioners of State Contracts,
In the cases which have been cited there was a failure to comply with more than one of the constitutional requirements; but this is immaterial, for if the sections of articles 3, 4 and 5 of the constitution, which are cited in the case from which we have just quoted, are to be regarded as mandatory and so connected and interwoven with the *575
exercise of the legislative power and authority as to be essential and indispensable parts thereof, then, as stated in that case, they operate as limitations upon the power of the legislative department, and no action of the legislature can be held to be a law which violates any one of those limitations. While the decisions of the courts of other States are not all in harmony with the decision in Burritt v. Commissioners ofState Contracts, supra, the majority of the courts hold that where there is a constitutional provision requiring an enacting clause, the requirement is mandatory. People v. Dettenthaler,
In Sjoberg v. Security Savings and Loan Ass'n, supra, the court, holding the constitutional provision mandatory and a statute without any enacting clause void, said: "All written laws, in all times and in all countries, whether in the form of decrees issued by absolute monarchs, or statutes enacted by king and council, or by a representative body, have, as a rule, expressed upon their face the authority by which they were promulgated or enacted. The almost unbroken custom of centuries has been to preface laws with a statement in some form declaring the enacting authority. If such an enacting clause is a mere matter of form — a relic of antiquity — serving no useful purpose, why should the constitutions of so many of our States require that all laws must have an enacting clause, and prescribe its form? * * * It is not necessary to go to the extent of holding that in the absence of any constitutional provision on the subject a statute without an enacting clause would be void, but we do hold that the framers of our constitution, and the people adopting it, advised by the usages of the past and the *576 wisdom and legal learning of the men who had framed the constitutions for so many other States, regarded an enacting clause in a law as useful, necessary and proper, and that they therefore anchored in the constitution a requirement that every law should have an enacting clause and prescribed the form thereof."
"The enacting clause is the section of a bill or statute which establishes the whole document as a law." (Anderson's Law Dict.; Pearce v. Vittum,
The Cities and Villages act is the charter of the appellee, which is held in People v. Mount, supra, to bear the same relation to the ordinance of the city that the constitution of the State bears to the statutes. The same rules apply to the construction of section 5 of article 2 of the Cities and Villages act as to section 11 of article 4 of the constitution. The style of the ordinance, — that is, the enacting clause, — which expresses upon the face of the ordinance the authority by which it is enacted, is subject to the same rule of construction as the style of the statute, which expresses on the face of the statute the authority by which the statute is enacted, and the two are subject to the same rule of construction. Where the method of passing an ordinance is prescribed by the organic law of a municipal corporation, it can no more pass an ordinance in disregard of the requirement of such organic law than the legislature *577 may pass a statute in disregard of a constitutional limitation. The supposed ordinance attached to the petition was not a valid ordinance of the city of Carlyle and therefore constituted no basis for the levying of a special assessment.
The judgment of the county court is reversed and the cause remanded, with directions to dismiss the petition as to the appellants.
Reversed and remanded, with directions.