| Ill. | Nov 13, 1886
delivered the opinion of the Court:
The controlling question in the above cases being the same, they have been consolidated, and will be considered together. The first is an appeal, by the People, from an order of the county court of Cook county, sustaining objections to and denying application for judgment against the right of way, etc., of the Chicago and Northwestern Bailway Company, for the amount of a special road tax levied by the commissioners of highways of the town of Proviso, Cook county, under the act of 1883. The other case is an appeal by Frank Meyer, as collector of said town, from a decree of the circuit court of Cook county, rendered upon a bill filed therein by David A. Thatcher, as a tax-payer, perpetually enjoining Meyer from collecting the same tax. The record shows, and it is a conceded fact, that the tax in question was levied for the improvement of certain roads, a part of each of which lies within an incorporated village in said town.
The controlling question in these cases, and the only one necessary to notice, is, whether a tax levied for the purpose, and under the circumstances stated, is a valid tax. The lower courts have both, on the authority of Ottawa v. Walker, 21 Ill. 605" date_filed="1859-04-15" court="Ill." case_name="Town of Ottawa v. Walker">21 Ill. 605, Commissioners v. Baumgarten, 41 id. 254, and People v. Supervisors, 111 id. 527, answered this question in the negative, and, we think, properly. An examination of the eases cited, conclusively shows that this court is fully committed to the principle, that statutes conferring, in general terms, authority upon commissioners of highways to construct and maintain roads and bridges within their respective towns, will not be so construed as to authorize.its exercise within the territorial limits of incorporated cities and villages in such towns. This construction commenced under the constitution of 1848, and has received the fullest recognition under the present constitution.
Waiving the question of constitutional power, we perceive nothing in the act of 1883, under which these proceedings were had, which justifies the conclusion that the legislature intended the present act should have a more extended operation than former acts, conceived in like general terms, upon the same subject. It is rather to be presumed, the act was framed with special reference to the settled construction given to such former acts. It could not have been intended by the act of 1883, to modify or in any manner limit the power of cities and villages over public highways and bridges within their corporate limits. And the proposition that the jurisdiction of the town and these municipalities, with respect to such matters, is concurrent, is obnoxious to so many vital objections that it can hardly be entertained. It were useless to attempt to enumerate the complications and difficulties that would be most likely to arise in an effort to exercise such concurrent jurisdiction. These considerations lead to the construction and course of decisions hitherto adhered to, and we have no disposition to depart from them now. If there be hardships and inequalities in the law as it exists, the legislature is the proper tribunal to correct the evil, and not the courts.
The judgments will be affirmed.
Judgments affirmed*