Lead Opinion
delivered the opinion of the Court:
The contentions in the present case, in behalf of appellant, as formulated by his counsel, are:
First—That the sanitary district is a drainage district, within the meaning of section 31, article 4, of the constitution, and that such provision of the constitution is a limitation upon the powers of the General Assembly to authorize such improvement to be made in any other way than as provided therein, viz., by special assessment.
Second—That the improvement in question is a local improvement, and, under section 9 of article 9 of the constitution, the corporate authorities of cities, towns and villages, alone, can make the same; that the municipal corporation in question is neither a city nor a town nor a village, nor do the officers thereof exercise the powers of any city, town or village, or of any number thereof in combination.
Third—The second paragraph of said section 9, article 9, although it gives all municipal corporations power to assess and levy taxes for all other corporate purposes, it necessarily excludes from such corporations the power to raise revenue by general taxation for the purpose of a local improvement, which, this is.
Fourth—The indebtedness due from the cities, villages and towns included within the boundaries of this district is much beyond five per cent of the value of the taxable property therein, as ascertained by the last assessment for State and county taxes. Complete power is given to the city of Chicago, under its charter, to prosecute and make the improvement contemplated, and it is manifest that this new corporation was created for the sole purpose of evading section 12, article 9, in regard to the limit placed upon the indebtedness of such city.
Fifth—The act in question is a local law, as is apparent. This is not objectionable if the power of the Assembly to pass this act is referred to the drainage section of the constitution, but if not governed by the drainage section, then it is obnoxious io section 22, article 4, in regard to special legislation. It is an amendment to the City Incorporation act, and it grants privileges and franchises to a corporation by special act.
In the view that we take of these contentions, they involve but three general questions: First, is it within the power of the General Assembly, under our constitution, to authorize the formation of sanitary districts, disregarding the existence and boundaries of pre-existing municipal corporations, and invest their corporate authorities with powers of general taxation for sanitary purposes; second, if this shall be answered in the affirmative, are the corporate authorities of such districts limited in the amount of indebtedness which they may incur under section 12, article 9, of the constitution, by the amounts of pre-existing indebtedness of other municipal corporations covering the same or a part of the same territory; third, is the act ■under which the district whose corporate authorities are here sought to be enjoined, was formed, local or special legislation, within the prohibition of section 22, of article 4, of the constitution. It will be most convenient for us to observe this ■ •order in considering and passing upon the questions discussed in the arguments of counsel.
First—It has been stated, and frequently repeated in decisions of this court, that the constitution of the State is not 4o be regarded as a grant of powers to the legislative department, but that, on the contrary, it is rather to be regarded as .■a restriction upon its powers,—that the whole legislative power •of the State being conferred by the constitution upon the General Assembly, every subject within the scope of civil government not withdrawn from its authority may be acted upon by that body. People v. Salomon,
It is not contended that there is any express denial,- in the constitution, of power in the General Assembly to authorize the formation of sanitary districts, but the contention is, that it is denied by necessary implication. Upon an examination of the constitution, it will be seen that article 10 of that instrument provides for the organization of counties, and for county government, and that in other articles it is contemplated that there will be locаl governments for public purposes, designated as “cities,” “towns,” “villages,” “school districts,” and “other muncipal corporations;” but there is no specification of the powers that shall be conferred upon either, and no prohibition of the withdrawal of powers once conferred upon one, and thereafter conferring them upon another. In these respects the present constitution does not differ from the constitutions of 1818 and 1848.
In Shaw v. Dennis,
Since a park district does not fall within the definition of a county, a township, a school district, a city, a town or a village, it is plain the park commissioners, as such, merely, were not the corporate authorities of suсh a corporation as, under section 5, article 9, supra, could levy a tax for corporate purposes, and the act therefore sought to make them corporate authorities of each of the townships united in the park district, for park purposes. But it was held in Harward’s case, and in the Mayor case, supra, that by the phrase “corporate authorities,” within the meaning of section 5, article 9, supra, must be understood those municipal officers who are either directly elected by the population sought to be taxed by them, or appointed in some mode to which they have given their assent, and so it was necessary, in order to sustain the authority of the commissioners, in the Salomon case, that each of the townships united in the park district should vote in favor of the act, and such affirmative vote having been given, it was held that the park commissioners were thereby made the corporate authorities, for park purposes, of each of the townships united in the park district, and so were empowered to assess and collect taxes in each of such townships, for park purposes. And upon this, the court said: “These relators are made a body politic and corporate, with perpetual succession, and with a seal, and though appointed by the Governor, they are a corporate authority, within the meaning of the constitution, as the people of the towns named have consented by their votes to the mode ° of appointment. By their votes they have, by large majorities, adopted this act, thus making the relators, or commissioners, corporate authorities, projiac vice, for the purposes of this park, and have consented to the creation of this debt. We lay no stress upon the fact that the commissioners are, nominally, a corporation, for Ave do not hold it is" in -that capacity they can. issue bonds or levy taxes to bind the people of these three toAvns, but as township or corporate authorities, whose appointment has been assented to by the people within their jurisdiction.” To like effect, see, also, Dunham v. People ex rel.
In Greeley et al. v. People,
In People v. Harper et al.
Public corporations for the opening, improving and repairing of roads and the building and maintaining of bridges have . been created under enactments of the General Assembly, and. invested with powers of taxation for corporate purposes, and it has been held that no provision of the present constitution, or of that of 1848, requires that their boundaries shall be the same-as that of the townships. (Butz et al. v. Kerr,
Our present constitution, adopted in 1870, contains the following section:
Sec. 9, (art. 9.) “The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.”
This, it will be observed, differs materially from section 5, article 9, of the constitution of 1848, in two respects: First, it enumerates the corporate authorities of “cities, towns and villages, ” and provides that they may be vested with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise; and second, it does not enumerate, as does section 5 of article 9 of the constitution of 1848, the municipal corporations, the corporate authorities of which may be vested with power to assess and collect taxes for corporate purposes, but simply provides that for certain corporate purposes “all municipal .corporations may be vested with authority to assess and collect taxes,” etc. Very clearly, the words “municipal corporations,” are here used, not in their primary sense of “cities, towns and villages,” but in their ordinarily accepted and more enlarged sense of public local corporations exercising some governmental function, for had it been intended to mean by them only cities, towns and villages, there would have been no difference between the language employed in the first clause to describe the corporations intended by it, and the language employed in the second clause to describe the corporations intended by that clause. This change in phraseology is conclusive that, in respect to the corporations to be affected, a different idea is intended to be expressed in the second clause than that expressed in the first clause. And the fact that the language employed is, in form, in the first clause, specific, and, in the, second clause, generic, admits of no other conclusion than that it is intended the second clause shall be more comprehensive than the first clause, and include other corporations not therein enumerated, and so, necessarily, all public local corporations exercising some governmental function, which is the present popular and ordinarily accepted meaning of the words “municipal corporation.” Instead, therefore, of the General Assembly being, under the present constitution, restricted as to the municipal corporations which it may invest with power to assess and collect taxes for municipal purposes, as it was under the constitution of 1848, it is entirely unrestricted, and the General Assembly may now as readily create such corporations as it was held that it could under the constitution of 1818, in Shaw v. Dennis and Dennis v. Maynard, supra, although it can not, because of restrictions imposed by virtue of the second clause of section 9, article 9, supra, arbitrarily impose taxation, on such corpоrations, as it was held in those cases that, under the constitution of 1818, the General Assembly might.
It seems to have been thought, in argument, that there is some restriction upon the General Assembly as to the boundary lines within which new municipal corporations may be authorized to be organized. This has no foundation in the constitution. There are there certain restrictions as to the boundary lines of counties, but none as respects other municipal corporations. It is probable that the idea had its origin in a misapprehension of the Salomon case, supra. There, as has been seen, the new. corporation could only be sustained by making its corporate authorities the corporate authorities of the several townships united, for the purpose of taxation for park purposes. But now there being no restriction as to the municipal corporations that may be vested with authority to levy and collect taxes for corporate purposes, it is wholly unnecessary that the corporate authorities of the new corporation shall be also the corporate authorities of some specified preexisting corporation, and it is not pretended that the corporate authorities of this sanitary district are the corporate authorities of any pre-existing corporation.
The preservation of health is one of the paramount objects of government. 1 Blackstone’s Com. (Sharswood’s ed.) 132, *133. It belongs tó the police power, “subject to the proper exercise of which,” says Dillon, (Mun. Gorp. see. 93,) “either by the State legislature directly, or by public corporations to which the legislature may delegate it, every citizen holds his 'property.” It includes the making of sewers and drains for the removal of garbage and filth, the boring of artesian wells and the construction of aqueducts for the purpose of procuring a supply of pure, fresh water, the drain of malarious swamps, and the erection of levees to prevent overflow. See Dillon on Mun. Gorp. secs. 93-96; Cooley on Taxation, (1st ed.) 101.
It is too plain for argument, that the drain here in contemplation falls within this power, and perhaps no one will question the competency of the General Assembly to invest cities, towns and villages with the power to construct like drains. ■But is the duty or the power of the General Assembly, in this respect, any less in regard to a rural than to an urban population ? The constitution will be1 searched in vain for a provision or a clause recognizing the duty and the power in the General Assembly in the one case, and denying it in the other. If the General Assembly may vest the power in cities, towns and villages, and may also create a corporation in the county and invest it with the power, it would seem to inevitably follow that it may create a corporation including both city and county, and invest it with the power. It must be evident that often, to render the exercise of such power by cities effective, it would have to be exercised over large rural districts adjacent to cities, as iñ case of large malarious swamps lying within the vicinity of cities, and in other instances, where the air and water to be used by the city population would be poisoned and laden with germs of disease by causes existing beyond the city limits. In such cases the preservation of health in the city would require that municipal authority should be exercised beyond the city limits; and it would violate no principle of constitutional law to create a district, and invest it with powers of taxation for sanitary purposes, co-extensive with the territory to be controlled. If districts may be thus organized, the question of the propriety of their organization in this or any other particular instance belongs to the General Assembly, and not to the courts, and it has been repeatedly held in other States, that they may be thus organized. Reeves v. Treasurer of Wood County,
But the contention of counsel concedes, that all that we have thus far said may be admitted to be true, yet our constitution provides, in section 31, article 4, that “the General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessment upon the property benefited thereby.” And this, it is contended, is a denial of power in the General Assembly to authorize the construction and keeping in repair of drains, ditches and levees otherwise than by special assessment upon the property benefited thereby, and so necessarily of the power to authоrize the same to be done by general taxation on the property in the district. In our opinion, this is untenable. In construing this section, we must keep in view the other sections of the constitution relating to municipal taxation in force prior to its adoption, and the fact that its manifest purpose and effect are only a modification and amendment of those sections. In City of Chicago v. Larned,
It is manifest from the phraseology of the first clause of section 9, article 9, of our present constitution, that it was adopted to remove restrictions, on the power of the General Assembly held to exist under section 5, article 9, of the constitution of 1848, in the Lamed, case, and in the other like eases referred to, and to enable the General Assembly to authorize the making of local improvements in the way it was there held it was prohibited from doing. But in Updike v. Wñght, 81 111. 49, it was held that this first clause of section 9, article 9; is a prohibition against special assessments by the corporate authorities of other municipalities! than those of citiеs, towns and villages; and the contention of counsel for appellant is, that by the same rule of construction it is also a prohibition against the making of local improvements by the corporate authorities of any'other municipalities than those of cities, towns and villages, by general taxation; that the words, “or otherwise, ” at the end of the first clause of the 'section, mean “by general taxation,” and that the clause therefore should be construed as reading, the “corporate authorities of no municipal corporation but cities, towns and villages shall be allowed to make local improvements by special assessment, by special taxation of contiguous property, or by general taxation. ”
It would be a sufficient answer to this to say, that it is not shown, by anything in the record before us, that the improvement here contemplated is a “local improvement, ” within the meaning of those words as used in this clause. In a general sense, all improvements within a municipality are local,—that is, they do not extend to all parts of the State; they have a locality; are nearer to some persons and property than to others. But it is evident that is not what is here meant by “local improvements,” for if it were, it would have been more natural and lucid to have said “improvements, ” without other qualification, or, simply, “municipal improvements.” We are to give all the words employed some meaning, if we can, and so we must consider “local improvements” in connection with “special assessment, ” for the local improvement contemplated is one that can be made by special assessment, if only the corporate authorities shall elect to make it in that way. The words “special assessment” had received a construction by this court in Lamed’s case, and in other like eases, under the constitution of 1848; and at the time of the adoption of the present constitution it was held, and has been since held, to mean an assessment to pay for an improvement for public purposes upon real property which is, by reason of the locality of the improvement, specially benefited, beyond the benefits by the improvement to real property, generally, throughout the municipality, proportioned by such benefits. (Guild v. Chicago,
That this is the correct view, is further confirmed by the fact that in numerous cases decided by this court, under statutes enacted since the adoption of the present constitution, the right to levy and collect general taxes by park commissioners for park purposes, by highway commissioners for road and bridge purposes, and by school directors for the building of school houses, has passed unchallenged, and been tacitly recognized by us to be within constitutional authority. And it can surely need no argument to prove that such corporations are of precisely the same class or grade as are sanitary districts. Wé must hold the words “local improvements,” in this connection, to mean improvements that can be made by special assessment.
Whether, in a given case, an improvement is of that character that it can be made by special assessment, is a question of fact, and not of law. It is quite probable that the relation of benefits and cost of improvement to particular property would be very different in the case of a great drain intended to benefit an extended area of city and country by affording outlets for a vast number of sewers,, and also an outlet for the stagnant waters of river and lake, than i't would be in the construction of an ordinary sewer benefiting only contiguous property holders by carrying off the sewage flowing from their property.
' We can not take notice, as a matter of law, that the drain here contemplated is a “local improvement,” within the contemplation of the first clause of section 9, article 9, of the constitution, so that it can be made by a “special assessment,” and there is no allegation to that effect in the bill.
But we need not rest the decision of the question on this ground. It is a familiar rule of construction that when general words follow particular words, the former can mean only things or persons of the same kind or class as those which are particularly mentioned. (Sedgwick on Stat. and Const. Law, 236 ; Drake et al. v. Phillips,
But, again, there could have been but two purposes in adopting this clause,—one to remove the restriction held in the Lamed case, and other like cases, to be imposed upon the General Assembly by section 5 of article 9 of the constitution of 1848, (and, of course, by like language in the present constitution, unless qualified by other language,) preventing it from authorizing local improvements to be made at the expense of contiguous real estate on the basis of frontage; and the other, as held in Updike v. Wright, supra, to restrain the power of the General Assembly, and limit it to conferring authority upon cities, towns and villages, only, to make local improvements in the manner provided by this clause. If the words “or otherwise” include general taxation, they include every possible way in which local improvements can be made, except by special assessment and special taxation of contiguous property, and so to hold that it was intended that no municipal corporation except cities, towns and villages shall be authorized by the General Assembly to make local improvements by special assessment, by special taxation of contiguous property, or by general taxation, as contended by counsel, is but to hold that it was intended no municipal corporation, except cities, town and villages, shall be authorized to make local improvements. That this could not have been intended, we think ' is obvious, for several reasons. In the first place, if it had been, that would have been said. In the next place, special assessments were not condemned in the Loomed case, and other like cases, under the constitution of 1848, and so, even if this clause had not been inserted, would have been admissible under the present constitution. The words “by special assessment” could not, "therefore, have been used to prevent any restriction that would otherwise have existed under the present constitution ; but they express a mode of making a local improvement in contradistinction to that by general taxation, and so must have been used, in connection with the words “or by special taxation of' contiguous property,” to limit the local improvements which cities, towns and villages, only, could make to those modes, and hence, by the same rule of construction applied in Updike v. Wright,—namely, that the express mention of one thing is the exclusion of another, (Smith’s Com. on Stat. and Const. Law, sec. 508,)—while municipal corporations other than cities, towns and villages shall not be authorized tp make local improvements by special assessment, or by special taxation of “contiguous property,” they may be authorized to make them by general taxation.
In this view, it is most probable that the words “or otherwise” were used to exclude the possibility of misapprehension that because only cities, towns and villages could be authorized to make local'improvements “by special assessment,” “or by special taxation of contiguous property,” they could not be authorized to make them by general taxation. The prohibition is not against cities, towns and villаges, for the effect of the first clause is to remove all restrictions upon the General Assembly in empowering them to make local improvements, but it is against the other municipal corporations. This, however, is solely by virtue of the clause requiring taxation to be uniform in respect to persons and property within the jurisdiction-of the body imposing the same, and can extqnd no farther.
The words “for other corporate purposes,” in the second clause, can not be held to mean, “for other corporate purposes' than those of local improvement, ” as contended by counsel for appellant, but must mean, “for other corporate purposes than those of local improvement' by special assessment, or by special taxation of contiguous property,” for it is the manner of making a local improvement, and not the fact of making it, that is the subject of the first claiise. The section is plainly intended to cover the entire field of taxation,—the first clause, that of making local improvements by a mode different from that by general taxation, in which the cost of the improvements is assessed against the property actually or presumptively benefited thereby; and the second clause, that of general taxation, in which the rule of uniformity as to persons and property taxed shall be -observed,—and so we held in Murphy v. People, 120 111. 242. In the natural order of statement, the first clause of section 9, article 9, should have succeeded the second clause, but this can make no difference if we shall only keep in mind that the first clause is in fact but a removal of restrictions, which, but for it, would he imposed by the other provisions.
In the light of our рrevious decisions, we must read so much of section 9, article 9, as is pertinent to the present question, regarded as a prohibition, as it has been held to be, upon the General Assembly, as follows: First, the General Assembly shall not authorize taxes to be imposed by the corporate authorities of municipal corporations otherwise than uniformly upon persons and property within the jurisdiction of the body imposing the same, except in cases of local improvements by cities, towns and villages; second, no municipal corporation other than cities, towns and villages shall be authorized to make local improvements by special assessment, by special taxation of contiguous property, or by otherwise assessing the cost of the improvement against the property actually or presumptively benefited thereby.
Section 31 of article 4, as it now reads, was submitted by the General Assembly of 1877 to the vote of the people at the November election of 1878, and it was adopted by a majority vote at that election. Strictly speaking, only the first clause of the section is an amendment of section 31 of article 4 of the constitution, which provided that “the General Assembly may pass laws permitting the owners or occupants of lands to construct drains and ditches, for agricultural and sanitary purposes, across the lands of others'.” That and the next preceding section, which relates to “private ways, ” were obviously originally adopted because of the ruling in Nesbitt v. Trumbo,
“The General Assembly may vest the corporate authorities of cities, towns, villages and drainage districts with power to make local improvements by special assessment. The General Assembly may vest the corporate authorities of cities, towns and villages with power to also make local improvements by special taxation of contiguous property. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.”
This, and this only, is the extent of this amendment to the constitution, so far as it has a bearing upon any question arising upon this record. Before its adoption, drainage districts could not be invested with power to make local improvements by special assessment,—only cities, towns and villages could bе invested with such power. Since its adoption, drainage districts, as well as cities, towns and villages, can make local improvements by special assessment. But cities, towns and villages can also make local improvements by special taxation of contiguous property, which drainage districts can not do. The effect of the amendment is the same as a grant of power to the General Assembly, in that it enables the General Assembly to now do what, by reason of previous constitutional restrictions, it could not before do; but it is not, in fact, a grant, but the simple removal of the previous constitutional restrictions, enabling the General Assembly to exercise original powers, which it was, by those restrictions, prohibited from exercising.
The rule of construction that the constitution is not to he regarded as a grant of legislative powers to the General Assembly, but merely as a restriction upon its powers, being kept in view, the first clause of section 9, article 9, as amended, only amounts to this:" First, the General Assembly shall not vest the corporate authorities of municipal corporations, other than cities, towns, villages and drainage districts, with power to make local improvements by special assessment; second, the General Assembly shall not vest the corporate authorities of municipal corporations, other than cities, towns and villages, with power to make local improvements by special taxation of contiguous property, etc. And so the power to authorize the formation of sanitary districts, and to invest their corporate authorities with power to levy and collect general taxes for corporate purposes, is entirely unaffeсted by this amendment.
It may be that the General Assembly is prohibited from authorizing the formation of drainage districts for agricultural or mining purposes, and investing their corporate authorities with power to make improvements otherwise than by special assessment, because such purposes' are, as intimated in Hessler v. Drainage Comrs.
Second—The language of section 12, article 9, of the constitution, is: “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, exceeding, in the aggregate, five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness.” It would be difficult to employ language making it plainer that the prohibition is on each corporation singly, and not upon two or more in the aggregate.
The boundaries of this sanitary district are not co-terminous with those of the city of Chicago, or of any other municipality, nor are the persons and property within its limits the same, or substantially the same, as those within the limits of' the city of Chicago or of any other municipality. The district was organized, pursuant to an affirmative vote of the electors within its limits, as a municipal corporation for sanitary purposes, entirely distinct from and independent of the gоvernment of the city of Chicago, and of that of every other municipal corporation, and'it has municipal authorities of its own, elected by the electors within the district, pursuant to the requirements of its charter, whose functions are in nowise connected with any other municipal government. The case is therefore wholly unlike Dunham v. People,
But it is said that if new corporations may be created and vested with some of the functions of local government of pre- • •existing municipal corporations, this section of the constitution may be rendered a dead letter by the mere multiplication of municipal corporations. It will be quite time enough to meet that question when it shall arise. A case presenting the question of the power of the General Assembly to authorize the re-distribution of the powers of an existing city, town or village to a number of corporations equal to the number of the powers distributed, for the purpose of getting rid of restrictions upon the old corporation, is so essentially and palpably different from the present case that it would be entirely irrelevant to stop to consider it.
The present legislation maybe unwise—improvident—even vicious; but it does not follow that it is unconstitutional. Under the most perfect constitution there must be much discretion in the legislative department, for an abuse of which there can be no remedy in the courts. This legislation preservеs, to the fullest extent, the principles of local self-government. The law is not forced upon an unwilling community. The mode of fixing the limits of the district is, it is true, arbitrary; but this is inevitable in the organization of any new municipality. Before there can be any government, some power must arbitrarily determine where its boundaries shall be, for otherwise it can not be known who are to take part in organizing, electing, etc., and so there can be, here, no valid objection in that respect. So far as it is possible, in any case, for the inhabitants of a district to select for themselves a municipal government, this municipal government has been selected by the people of this district. As we have before seen, we can only condemn legislation for unconstitutionality where some provision of the constitution can be pointed to as plainly and palpably violated. It is not enough that the principle of some particular restriction would, if extended, prohibit the legislation. The prohibition of a thing,'by name, in the constitution, is equivalent to an admission of'what is not named. Prettyman v. Supervisors, etc.
Since, therefore, we have been unable to find any denial, expressed or implied, in-the constitution, of power in the General Assembly to authorize the formation of sanitary districts, as provided in this act, we must hold that the clause of the constitution in question applies to this district precisely as it does to any other independent municipal corporation, and that therefore the indebtedness of other municipalities can not be taken into consideration in determining the limit to which it may incur indebtedness.
Third—The only prohibition against the formation of municipal corporations by local or speciаl legislation is in section 22, article 4, of the constitution. “Sanitary districts,” oi; “drainage districts for sanitary purposes, ” are not enumerated in that section. The municipal corporations expressly mentioned are only “cities, towns and villages,” .and the rule hereinbefore alluded to, that the expression óf one is the exclusion of another, is applicable. (Smith’s Com. on Stat. and Const. Law, ubi supra; Prettyman v. Supervisors of Tazewell County et al. supra.) We held in Owners of Lands v. People,
The general clause in the same section, that when a general law can be made applicable, no special law shall be enacted, has been repeatedly held to be addressed to the General Assembly, and not the subject of review by the courts. Johnson v. Joliet and Chicago Railroad Co.
We find no sufficient reason for disturbing the decree below, and it is therefore affirmed.
Decree affirmed.
Dissenting Opinion
dissenting:
I am unable to concur in the view that this Act is a constitutional law for the reasons stated hereinafter and in the dissenting opinion in People v. Nelson, (page 602, post.)
The provisions of the Act, which authorize money to be raised for the improvements therein specified by general taxation, are unconstitutional.
As is stated in the dissenting opinion in the Nelson case, the districts formed under this Act must be regarded as drainage districts. Although there are expressions in the Act in regard to the carrying off and discharge of sewage, yet such sewage is alleged to be a part of the drainage contemplated by the Act, and is spoken of in section 7 as being included in the drainage which the board of trustees are to provide for. It is true that one of the objects of drainage is to carry off the surplus waters from lands, but carrying off the water, together with the filth mixed with the water, from the sewers of a city, and from the various connections by means of pipes or otherwise with such sewers, and conducting it into a common outlet, channel or receptacle, is also a species of drainage. The language of the second clause of section 31 of article 4 of the constitution is broad enough to include drains for carrying off the sewerage of cities as well as drains for. the surface water of farming lands. (Village of Hyde Park v. Spencer,
The power of the legislature whpn not exercised in violation' of the principles-of justice and free government and in opposition to the common sense of mankind, is omnipotent, except so far as it is limited by the State and Federal Constitutions. Our State constitution is not a grant of power to the legislature, but a limitation upon the power of the legislature. As, therefore, a necessity existed in 1878 for a constitutional provision providing for the organization of drainage districts with power to construct drains by special assessments, there must have been some limitation upon the power of the legislature in this regard in the constitution as it already existed. It is conceded that such limitation is to be found in section 9 of article 9, which reads as follows: “The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to' assess and collect taxes; but such taxes shall be uniform in respect to persons and property, within the jurisdiction of the body imposing the same.”
What is the obvious meaning of section 9 ? It is a limitation upon the power of the legislature to grant to any municipal corporations, except cities, towns and villages, the authority to make local improvements. Cities, towns and villages are the only municipalities, whose corporate authorities can be vested by the legislature under this section with the power to make local improvements by special assessments, or by speсial taxation of contiguous property, or otherwise. The words “or otherwise” are very broad and include general taxation. Cities, towns and villages can be vested with the power to make local improvements by general taxation, as well as by special assessment or special taxation. (City of Galesburg v. Searles et al.
“For all other purposes,” that is, for all purposes other than making local improvements, all municipal corporations may be vested with authority to assess and collect taxes, the same to be uniform, etc. The plain meaning of section 9, as it stood before the amendment of 1878, may be thus expressed: All municipal corporations, including cities, towns and villages, may be vested by the legislature with power to assess and collect taxes (the same being uniform in respect to persons and property within the jurisdiction of the body imposing the same) for all corporate purposes except making local improvements, but, as to local improvements, the legislature is prohibited from granting the power to make such improvements to any other municipalities than cities, towns and villages, which may be clothed with the authority to make them either by special assessment, or special taxation, or general taxation.
It is, therefore, clear that, under the limitations contained in section 9, the legislature had no power to clothe a municipality organized as a drainage district, whether for sanitary, or agricultural, or mining purposes, with authority to construct channels or drains or ditches by any of the methods named in section 9, because such a district was not a city or a town or a village. Hence, the amendment of 1878 wаs adopted for the purpose of giving to such districts the power needed to make such improvements as were necessary for drainage purposes.
Counsel for appellees contend, that the legislature already had. the power, under the second sentence of section 9, to create drainage districts and vest them with the power to make improvements by taxation, and that the sole object of the amendment of 1878 was to give them the power to make such improvements by the additional method of special assessment. I cannot concur in this view.
In the first place, if the legislature already had the power to create drainage districts and authorize their corporate authorities to make improvements by one method, towit: general taxation, it is hardly to be supposed that such method would not have been adopted without going through the process of securing a constitutional amendment for the purpose of accomplishing the same object by another and different method, towit: special assessments. In the second place, the amendment of 1878, by authorizing the legislature to vest the corporate authorities of drainage districts with the power to make improvements by special assessments, thereby limited and ■restricted the legislature to special assessments as the only method pf making such improvements which the districts in ' question could be authorized to resort to. Expressio wnius exclusio alterius. It is not denied that the first sentence of section 9, by authorizing the legislature to vest the corporate authorities of cities, towns and villages with power to make local improvements, thereby withheld from the legislature the authority to vest the corporate authorities of any other municipalities with such power. Why should not the same principle of construction apply to the amendment of 1878? If, by mentioning cities, towns and villages alone, other municipal corporations were excluded, why, by mentioning special assessments alone, are not other methods excluded ?
In the third place, the legislature by the first sentence of section 9, could confer upon cities, towns and villages the power to make local improvements by special assessments, or special taxation, or general taxation, but the amendment of 1878 is silent as to special taxation and as to general taxation, and mentions only special assessments. It will not be contended that the amendment conferred upon the legislature the authority to vest drainage districts with the power to make improvements by special taxation of contiguous property. For the same reason, by its silence as to general taxation, it did not authorize such districts to be vested with the power to make improvements by that method. In other words, the amendment being a modification of the limitation contained in the first sentence of section 9, the modification will not be held to be broader than the language warrants. The amendment gives to drainage districts, as well as to cities, towns and villages, the power to make certain improvements, but, if it had intended that such districts should have the right to adopt more than one of the methods for making such improvements which cities, towns and villages already possessed, its language would not have been confined to one only of such methods.
Finally, the contention, that the legislature had the power to authorize such districts as are provided for in this Act to raise money by general taxation, proceeds upon the theory that the improvements contemplated by the Act are not local improvements. It has already been said that the words, “for all other purposes, ” in the second sentence of section 9, mean all other purposes except the making of local improvements. If, therefore, the improvements contemplated by the Act are local improvements, they are not embraced among the “corporate purposes” for which alone, by the terms of the second sentence, municipal corporations may be vested with authority to “assess and collect taxes.” But it is quite clear, that the improvements, which drainage districts are organized to construct, cannot be regarded otherwise than as local improvements.
The very fact that the drains mentioned in the amendment of 1878 are to be constructed “by special assessment upon the property benefited thereby,” shows that the framers of that amendment regarded the improvements to be made by drainage districts as local improvements. No improvement other than a local improvement is ever made by special assessment. A special assessment involves the idea that the property assessed receives a special benefit from the improvement, and such property cannot be assessed for more than the amount of the benefit it so receives. Cooley, in his work on Taxation, (2d ed. page 606,) says: “Special assessments * * * are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property, peculiarly situated as regards a contemplated expenditure of public funds.” “A local assessment can only be levied on land; * * * it is an assessment on the thing supposed to be benefited. * * * A local assessment is levied on property situated in a district created for the express purpose of the levy and possessing no other function, or even existence, than to be the thing on which the levy is made.” (Id. page 607.) “To warrant the levy of local assessments, there must not only exist in the case the ordinary elements of taxation, but the object must also be one productive of special local benefits.” (Id. page 622.) In Owners of Lands v. The People ex rel.
The very act now under consideration authorizes the levying of special assessments. After section 10 has provided for the collection of a direct annual tax to pay the interest and principal of an authorized loan of $>15,000,000.00, and after section 12 has provided that the board of trustees may levy and collect taxes “for corporate purposes” upon property-within the district to the amount, in one year, of one half of one per cent, of the value of the taxable property within the corporate limits, etc., then section 13 proceeds as follows: “The board of trustees shall have power to defray the expenses of any improvement made by it in the execution of the powers hereby granted to such incorporation, by special assessment, or by general taxation, or partly by special assessment and partly by general taxation as they shall by ordinance prescribe. It shall constitute no objection to any special assessment that the improvement for which the same is levied is partly outside the limits of such incorporation, but no special assessment shall be made upon property situated outside of such sanitary district, and in no. case shall any property he assessed more than it will he benefited hy the improvement for which the assessment is made.”
If the improvements proposed to be made by the districts organized under this Act are not local improvements, then upon what ground can those portions of the Act, which authorize the levying of special assessments, be sustained ? An improvement may be none the less local because indirectly the public at large receive a benefit from it. The lots fronting on a street are specially assessed for the paving of the street, although thousands of citizens, who do not live on the street, are benefited in a certain sense by the use of it after it is paved. Cooley in his work on Constitutional Limitations (5th ed. page 617) says: “Assessments for the opening, making, improving, or repairing of streets, the draining of swamps, and the like local works, have been generally made upon property with some reference to the supposed benefits which the property would receive therefrom.”
It is true, that oftentimes an improvement partly local in its character and partly of general benefit, may be made partly by general taxation and partly by special assessment. “In the case of sewers it is very common to provide that the cost shall in part be a general levy on the municipality, and in part be collected by special assessment.” (Cooley on Tax. page 619.) But this species of double or two-fold taxation must be imposed by cities, towns and villages. Upon them alone is such power conferred by the constitution.
The only source from which it is claimed in this case that these sanitary districts can derive the power to raise money by general taxation is the second sentence of section 9. But that sentence not only excludes improvements that are wholly local, but improvements also that may be partly local and partly general. The Act of 1889 evidently, by the language used in section 13 as above quoted, treats the improvements to be made .under it as local in that they confer a special benefit upon particular property, and general as being of benefit to the public at large. Therefore such improvements are excluded from those “other corporate purposes” named in the second sentence of section 9. The making of an improvement partly general and partly local still has in it the elements of a local undertaking.
If the contention of counsel, that the districts provided for in this Act are not drainage districts, is sound, then all the provisions of the Act in regard to special assessments, and the issuance of bonds payable out of the funds to be realized from such assessments, must fall to the ground as being unconstitutional. This must be so, because the districts in question not being cities, towns or villages, cannot make local improvements under section. 9 of article 9, and, not being drainage districts, cannot make such improvements under section 31 of article 4. Under the limitations imposed by these two sections, only cities, towns, villages and drainage districts can be authorized by the legislature to adopt the method of special assessments for the purpose of making local improvements.
But I think that the improvements contemplated by this act are local improvements, and, therefore, if they can be made at all under the Act, they must be made by special assessment and not by general taxation. It follows that all the provisions of the Act for raising money by general taxation, are unconstitutional and void.
Inasmuch, therefore, as these districts can only raise money by special assessment and not by general taxation, it follows that the indebtedness of $15,000,000.00 mentioned in section 9 of the Act cannot be contracted. The constitutional limitation of municipal indebtedness to five per centum of the value of the taxable property in the municipality, etc., is accompanied by the constitutional requirement, that, at the time of incurring such indebtedness, provision must be made for the collection of a direct annual tax to pay the interest and principal. The creation of the debt and the provision for the collection of the tax must go together. Hence, if the power to provide for the collection of the tax does not exist, the power to contract the debt is also wanting.
The mode of submitting the question of the organizatiоn of the districts to an election by the people is not in accordance with the interpretation heretofore given by this Court to the requirements of the constitution upon this subject.
The authorities relied upon by counsel for appellees, as justifying the creation of sanitary districts in the mode prescribed by the Act, are the cases known as the Park cases, the most important of which are The People v. Salomon,
A careful examination of these cases will show, that the power to assess and collect taxes for corporate purposes, which the legislature was authorized by section 5 of article 9 of the constitution of 1848 to vest in the corporate authorities of towns, was held to have been lawfully vested in the Park commissioners, because the Park district was formed by a union of two or more towns, and its commissioners could be regarded as corporate authorities of such towns. That this is so, will appear from the following language in Dunham v. The People, supra: “It will thus be seen that before the adoption of the constitution of 1870, construction had been given to this clause of the constitution of 1848 by this Court, by which it was held that the district embracing the three towns of South Chicago, Hyde Park and Lake, when formed into a district for the purposes provided for in that Act, was to be regarded as a town, or rather that the Park commissioners, for these purposes, were to be regarded as the corporate authorities of-the three towns.”
An examination of the Park cases will also show, that the Park Act was submitted, not to the votes of the рeople in the Park district, but to the votes of the people of the three towns, and that the Act was adopted by a majority of the votes cast in each town. Thus, in The People v. Salomon, supra, it was said: “It is further objected, that the fact, that a majority of the votes of the three towns has been given to this Act, imparts to it no additional vitality, for by the scheme of the Act it might be that one of the townships by its large vote could dominate over the other two, and thus subject the minority towns to an onerous burthen imposed without their consent. This might be so, and if so, the case would be like the case of Lincoln Park, in which we held it contrary to the plain behests of the constitution to impose a local burthen of such magnitude upon an unwilling people without first obtaining the consent of the people to its imposition. When a similar case shall arise, the decision will doubtless be the same, but the facts admitted by the pleadings show a majority of the votes of each of the towns was cast in favor of the act.”
A study-of the Act of 1889, in the light of the features of the Park decisions as thus noted, will present an entirely different view of that Act from the one heretofore taken. The territory, which may be incorporated as a sanitary district under section 1 of the Act, must contain two or more incorporated cities, towns or villages, and no territory can be included in the district, which is not situated within the limits of a city, incorporated town or village, “or within three miles thereof.” By the use of the latter words the district may be so formed as to contain territory outside of a city, town or village. All the districts organized under the Act cannot therefore be regarded as formed by the union of two or more cities, towns or villages, as the Pаrk district was formed by the union of two or more towns. Hence, it cannot be said, as to a district containing such outside territory, that it may be clothed with the same power to make local improvements, which a single city, town or village may exercise under section 9 of article 9 of the constitution. It would differ from the Park districts mentioned in the cases cited, because, unlike the latter, it would not be an aggregation of one or more of the municipalities specifically named in the organic law.
But the words, “or within three miles thereof,” are in the alternative, and the Act contemplates the formation of districts, whose territory would lie wholly within two or more cities, towns or villages. Could the' organization of such districts be sustained upon the principies laid down in the Park cases? I think not.
By the terms of section 1, the purpose of organizing the sanitary district is “the maintenance of a common outlet for the drainage thereof.” The word “thereof” refers to the “area of contiguous territory within a single county,” and, when such area is wholly within the limits of two or more cities, towns or villages, the drainage referred to is that already existing in such cities, towns or villages. I do not wish to be understood as controverting the doctrine that the legislature of a State has a right to control the municipalities of its own creation. The legislature may even dispose of the property of such municipalities when their corporate powers are repealed, and, in certain cases, where those powers are modified. (Cooley on Cons. Lim. 5th Ed. page 292.) But the purpose of this Act, as to the class of districts now under consideration, is not to establish a new system of drainage, but to maintain an outlet for drainage already established. The drainage, for which the outlet is to be maintained, is that which is already under the control of the cities, towns or villages in the district. This is apparent from the use -of the word “sewage’' in section 1, which has already been referred to. Sewerage is a system of drainage by means of sewers, and sewage is sometimes used to denote the water flowing in or carried off by sewers, and sometimes the system of sewers for carrying off filth or superfluous water. ' Sewerage, or drainage by sewers, exists only, as a general thing, in' cities or incorporated towns or villages.
It follows that the Act, in proposing to furnish a common outlet for the sewage of the incorporated municipalities within its limits, deals directly with such municipalities. It recognizes their existence, and does not seek to curtail their powers, except in the one matter of a common outlet for their sewage. The sewers in a city belong to the city; they are built with money raised by taxation from the property of the residents in the city. It would seem to be necessary that some action should be taken by the authorities of the city before a connection could be made between its sewers and the common outlet to be built by the district. The trustees of the district, instead of providing drains for the lands of individual owners, provide a common drain for the existing drains of municipal corporations.
That- the districts in question propose to deal, with the municipalities within their borders is shown by the language of section 26. That, section assumes to state the terms and conditions, upon which one city, village or incorporated town, “which owns a system of water-works and supplies water from a lake or other source which will be saved and рreserved from sewage pollution, by the construction of the main channel, drain, ditch or outlet herein provided for, and the turning of the sewage of such city and district therein, ” shall be required to furnish water from its water-works to another city, town or village situated in the same district with it.
In view of the relations which must thus exist between the sanitary district and the cities, towns or villages within its borders, the Act should have provided that “the question of the organization and establishment of the proposed sanitary district” should be submitted to the votes of each of such cities, towns and villages and should be adopted by a majority of the legal voters in each. It does not so provide. It directs that the question be submitted to the voters of the proposed district, or of the district determined upon by the commissioners. The result of such a course must be that, where one of the cities, towns or villages in a district contains a large population, and another of them contains a small population, the latter may be forced to come into the district, and to connect its system of sewerage with the common outlet, by the votes of its more powerful neighbor, and without the consent of its corporate authorities or of a majority of its legal voters. One of the cities, towns or villages by its large vote could dominate over the others.
Such a result was condemned in the Park cases. If, in those cases, it was necessary that the Park Act should secure the majority of the legal votes in each town before the Park commissioners could be regarded as the corporate authorities of the three towns, so, here, a majority of the legal voters in each city, town or village should vote in favor of organization under the Aсt of 1889, before the trustees of a sanitary district can be regarded as the corporate authorities of the cities, towns or villages in such district. It might happen that one of such cities, towns or villages had a system of sewerage connecting with another and different outlet from that proposed to be constructed by the sanitary trustees. Shall it be compelled to go to the expense of severing its connection with the old outlet and forming a juncture with the new one without the consent of its inhabitants or its corporate authorities? Shall its property or that of its citizens be taxed to maintain an outlet which it may not use, and which a majority of its people may be opposed to-using ? (The People ex rel. v. Mayor, etc. of Chicago,
• The question does not depend upon the largeness or smallness of the vote in any particular instance of an attempt to organize a district under the Act. The point is that the Act itself does not upon its face provide for an election in each of the towns, cities or villages within the proposed district. It is therefore invalid under the rule laid down in the Salomon case, where it appears that section 18 of the Park Act required the election to be held in the towns.
This Act is unconstitutional because, under its provisions, either or all of the incorporated cities, towns or villages situated within any district organized under it, may contract a greater indebtedness than that allowed by the organic law. If the question does not arise upon the face of the Act itself, it arises upon the pleadings in one or more of the cases now before us. The bill in the Wilson case avers that, before the organization of the Chicago Drainage District of which the city of Chicago is a part, that city had reached the constitutional limit of indebtedness, and such averment is admitted by the demurrer.
Section 12 of article 9 of the constitution reads as follows: “No county, city, township, s.chool 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 per centum on the value ■ of the taxable property therein, to be ascertained by the last assessment for State and county taxes, previous to the incurring of such indebtedness-. Any county, city, school district, or other municipal corporation, incurring any indebtedness as aforesaid, shall before, or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same. This section shall not be construed to prevent any county, city, township, school district or other municipal corporation from issuing their bonds in compliance with any vote of the people, which may have been had prior to the adoption o"f this Constitution, in pursuance of any law providing therefor.”
By the prohibition that no municipal corporation “shall be allowed to become indebted, ” the constitution imposed a restriction upon the legislature as well as upon the municipal corporation itself. (Law v. The People,
The power of the legislature to create a new municipal corporation is subject to the limitations contained in the constitution, and, among others, to that contained in section 12 above quoted. The purpose of that section is “to effectually protect persons residing in municipalities from the abuse of their credit and the consequent oppression of burthensome if not ruinous taxation.” (Law v. The People, supra). “A city is made up of individuals owning the property within its limits, the lots and blocks which compose it, and the structures which adorn them.” (The People v. Mayor, etc.
No vote of the people can override the constitutional prohibition. Taxation cannot be imposed by the corporate authorities of a municipal corporation without the consent of the tax-payers, but it cannot be imposed beyond the constitutional limit,with such consent. The last sentence of section 12, by permitting the issuance of bonds in compliance with a vote of •the people taken prior to the adoption of the constitution, impliedly negatives their issuance in pursuance of any vote had after such adoption, except within the prescribed limits. It has already been seen that the vote for the organization of the sanitary district must be by the people of each city, town or village in the district. That the voters of each.of such cities, towns or villages cannot confer upon the corporate authorities thereof the power to assess and collect taxes for the payment of a greater indebtedness to be incurred by such city, town or village than the five per centum already named, will not bе denied. This being so, can such voters confer upon the authorities of the sanitary district the authority to levy and collect taxes for an indebtedness to be incurred by the district beyond the five per cent, limit already reached by the cities, towns or villages ? I think not. It is a mere evasion of the constitution. If a city, having contracted debts to the full amount of the five per cent., can become still further indebted by uniting itself with one or more adjoining towns or villages, or with a small strip of territory near its borders, then the restriction •imposed by the constitution becomes a meaningless farce.'
It is true that a county may become indebted to the amount of five per centum on the value of the taxable property therein, although there may be municipal corporations, such as cities, towns or villages, within its borders, which have respectively reached the constitutional limit of indebtedness, but this is true, because the constitution permits counties to so become indebted by expressly mentioning them. Such permission, however, cannot be extended to taxing districts improperly called municipal corporations, which were not in existence when the constitution was adopted, but created since its adoption.
The Park cases arose under a provision in the constitution of 1848. That instrument did not contain the limitation on municipal indebtedness now under consideration. Hence, the question did not arise in those cases as to the amount of debt which the Park district might incur.
It seems to be conceded by counsel on both sides that the Act of 1889 was passed with special reference to the organization of . a sanitary district of which the city of Chicago should be a part. It is proposed to double the indebtedness, to which the tax payers of that city are already subject, by adding its territory to that of the incorporated town of Cicero and the incorporated village of Lyons and certain lands in the township -of Lyons, and calling the whole the “Sanitary District of Chicago,.” with power to borrow $15,000,000.00, to levy special assessments upon property to an indefinite amount and issue bonds drawn against such assessments. This district is to construct a vast improvement, the most of which lies at the distance of many miles outside of its own limits. It is to be made liable to suits for damages in overflowing lands, in polluting the waters of rivers, to injunction suits and suits for specific performance. It is to pay the expenses of commissioners appointed by the Governor to inspect its work. It is to devote a part of the revenues, to be derived from the docks to be constructed by it, to the support of the State Government to the relief of the balance of the State. The Act shows upon its face that its framers regarded the improvement for which it provides as an uncertain experiment. No other construction can be placed upon the cautious phraseology made use of as to the dangers of overflow and of river-pollution. All this risk is to be run, and all this expense is to be incurred, by a district framed upon the theory, that the legislature can authorize an aggregation of municipalities to do what the constitution of the State forbids a single municipality to do. If the city of Chicago cannot lawfully increase its indebtedness through the ■ action of its own authorities and through the machiney of its own government, it cannot do so through an alliance with the town of Cicero and the village of Lyons.. The designation of the alliance as a Sanitary district cannot hide the ruinous infraction of a wise and wholesome provision of the constitution.