196 N.E. 442 | Ill. | 1935
Lead Opinion
An action at law was instituted in the circuit court of St. Clair county by appellee to recover an amount claimed to be due from appellant for water hydrant rentals. From a judgment in favor of appellee an appeal was taken here upon the certificate of the trial judge that the validity of a municipal ordinance is involved and in his opinion the public interest requires a direct appeal.
Appellee is a corporation engaged in supplying water for public and private use to the city of Belleville and its inhabitants. On June 4, 1907, appellant entered into a contract with the Belleville Deep Well Water Company, its successors and assigns, for the construction of a water supply system to furnish water to appellant and its inhabitants for an initial period of twenty-five years. This contract was in the form of an ordinance, No. 771, and was later amended. In 1916 the Belleville Water Supply Company, a successor company, became consolidated with other water *492 companies into the appellee company. Under ordinance 771, and ordinances amendatory thereof, appellant was to pay a stipulated annual rental on the fire hydrants then installed and to be installed during the time the ordinance contract was effective. The annual rental has varied from time to time since 1907, being $66 per hydrant since 1927. Up to November, 1932, appellant paid the rentals in full on 410 hydrants, but since that time has excepted 27 hydrants from its payments. Vouchers issued monthly by appellant for the hydrant rentals for the months of January to July, both inclusive, of 1934, bore endorsements that they constituted full payment for hydrant rentals. Appellee refused to accept these vouchers, claiming to be entitled to rental on 410 hydrants instead of 383, or a total of $18,178.51, with interest. A second count of the complaint was made up of the consolidated common counts. Appellant filed an answer to the complaint, which, after several amendments, asserted that under ordinance 771 and its amendments the aggregate hydrant rentals throughout the twenty-five-year period was in excess of five per cent of the assessed valuation of the taxable property in Belleville at the respective dates of enactment of the ordinances, thus bringing the ordinances within the prohibition of section 12 of article 9 of the constitution, which provides: "No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five percentum on the value of the taxable property therein," etc. Appellee moved to strike the answer on the theory that the matters therein did not constitute a defense to the action. The court below concurred in this view, struck the answer and gave judgment for appellee for $17,864. We are asked to determine the effectiveness of the complaint and matters of defense to the exclusion of other questions in order that the substantial rights of the parties may be settled at this time free *493 from any consideration of technical insufficiencies of either the complaint or answer.
We have had occasion to consider the language and meaning of section 12 of article 9 of the constitution many times in the past. We have held the provision to be mandatory and self-executing, as it is negative and prohibitory. (Law v. People,
Appellee asserts that hydrant rentals arising under contract ordinance 771 and its amendments do not constitute fixed sums though amounts may be specified in the ordinance, and that the rentals were not fixed for the twenty-five years. A city cannot, by ordinance or other means, *494 contract away its police power of fixing rates. Such power may be exercised from time to time or even continuously. (City ofDanville v. Danville Water Co. 178. Ill. 299; Public UtilitiesCom. v. City of Quincy, 290 id. 360; Board of Education v.Alton Water Co. 314 id. 466.) For the same reason appellant could not bind future city councils by setting up a fixed hydrant rental for the period. As a matter of fact, the rental rates were reduced through the course of years from $75 per hydrant to $66. The rates as originally fixed continued in force until superseded by other rates brought into existence through the exercise of the municipal or. State police power.
Appellee relies largely upon early decisions of this court to support its contention that the ordinance, at the time of its enactment, did not create a present subsisting debt against appellant for the aggregate amount of the water rentals. Appellee cannot avail itself of the holding in City of Danville
v. Danville Water Co. supra, on this particular point, since that part of section 12 of article 9 of the constitution which we are now discussing was not involved in the Danville case.
The cases of City of East St. Louis v. East St. Louis Gas Lightand Coke Co.
In view of our previous decisions we can only conclude that the contract ordinance was void because it created a then subsisting indebtedness in excess of the Belleville *496 constitutional limitation. By taking the number of hydrants in Belleville when the ordinance contract was entered into in 1907, and multiplying their number by the minimum rental rate during the period, $66, and then multiplying that product by 25, yields the amount of $369,600, which exceeded the five per cent debt limitation of Belleville in 1907. As the contract ordinance was void, it follows that the contingent provisions therein for the continued existence of the contract beyond the twenty-five-year period were likewise void.
The claim of appellee in this action was for rentals covering a period subsequent to the twenty-five-year period. Appellant, by tendering vouchers monthly for the payment of rental on 383 hydrants for those subsequent months, has admitted the existence of an obligation to that extent, and likewise has admitted the reasonable basis of rental per hydrant per annum to be $66. Appellant was not bound by any legal. obligation to pay rental on 410 hydrants if it saw fit to abandon 27 of them. Because of the tender of rental due on 383 hydrants, and the refusal of this tender by appellee, the trial court properly refused to allow interest on these tendered payments in the judgment. The judgment of the circuit court should have been for $14,745 under the consolidated common counts (Civil Practice act, art. 6, secs. 31-(1) and 33-(3), for rental of 383 hydrants.
The judgment is reversed and the cause is remanded to the circuit court, with directions to enter a judgment for appellee in the sum of $14,745, without interest.
Reversed and remanded, with directions.
Concurrence Opinion
We agree with the result reached in this opinion but not with all of the reasoning by which such result is reached. *497