38 Ill. 490 | Ill. | 1865
delivered the opinion of the Court:
We only propose to consider the question whether the amendatory act of the 10th of ,February, 1865, repeals the third section of the act of 1857, incorporating the City óf Aurora. The section referred to, declares that the city shall be divided into four wards, and fixes their boundaries, but it contains this proviso: “ that the Common Council may at any regular meeting, increase the number of wards and fix the boundaries of the same.” Section eleven of the act of 1865, declares that section three of chapter one of the act of 1857, “ shall be so amended, that it shall read as follows.” It then divides the city into eleven wards and defines the boundaries of each. It wholly omits the proviso embraced in section three, nor does it in any manner confer authority upon the Common Council to alter or change the wards thus created. The six teenth section declares all acts and parts of acts heretofore passed which conflict with or are inconsistent with the provisions of the latter act, are repealed.
Does the proviso in the third section of the act of 1857, conflict with the eleventh section of the act of 1865? We think it does. The eleventh section says that the third section is so amended as to read in the language therein embraced. And we find no portion of the proviso embraced in the eleventh section. If we were to transfer the proviso to and insert it in the eleventh section, it would not then read in the language that followed as the amendment; but it would read in the language declared to be the amendment, and also in other • language. No portion of the proviso follows in the eleventh section, whilst the Legislature has declared that the third section should be amended in the language employed in that section. When they said it should be so amended, that excluded all other language as well as the proviso. The act as amended fixes the wards and their boundaries, and fails to give power to the Common Council other than by reducing or increasing their number or by changing their boundaries.
If the eleventh section had declared that the third section should be so amended as to divide the city into eleven wards and had fixed their boundaries, and stopped, it would have presented a different question. But it declares that the third section shall be amended as follows, and we see that the proviso does not follow, nor is it even referred to in what does follow. It will not be contended that the Common Council had any power to change the wards, unless it was conferred by the Legislature. And failing to confer it, the Common Conncil acted without warrant of law in making the change in the wards created by the eleventh section of the act of 1865, and a peremptory writ of mandamus must be refused.
Mandamus refused.