City of Charleston v. Johnston

• Decision Date: 22 December 1897
• Citation: City of Charleston v. Johnston, 170 Ill. 336, 48 N.E. 985 (Ill. 1897)
• Parties: CITY OF CHARLESTON v. JOHNSTON et al.
• Court: Illinois Supreme Court

170 Ill. 336

48 N.E. 985

CITY OF CHARLESTON

v.JOHNSTON et al.

Supreme Court of Illinois.

Dec. 22, 1897.

Appeal from Coles county court; Sumner S. Anderson, Judge.

Petition by the city of Charleston against Isaiah H. Johnston and others for the assessment of costs of a drain. From an order dismissing the petition, plaintiff appeals. Affirmed.

W. E. Adams, H. A. Neal, and F. K. Dunn, for appellant.

J. H. Marshall and J. F. Hughes, for appellees.

WILKIN, J.

The city council of the city of Charleston having passed an ordinance establishing a drainage district, and providing for the construction of a drain therein, as provided in said ordinance, a petition was filed in the county court of Coles county praying for the assessment of the cost of the improvement, as provided by law, upon the property benefited thereby. Commissioners were appointed, and an assessment roll returned to the court, to which numerous objections were filed by property owners. Upon a hearing by the court the objection that the ordinance was invalid because it provided for the division of the assessment into 10 installments, and authorized the issue of bonds in anticipation of the payment thereof, was sustained, and the petition dismissed. The other objections were overruled. From the order of dismissal the city of Charleston prosecuted this appeal.

Section 1 of the ordinance ordains that certain territory therein described, lying within the corporate limits of the city, shall be improved by a system of drains, as thereinafter provided. Section 13 provides that ‘the payment of the special assessment for this local improvement shall be divided into ten installments.’ Section 14 authorizes the corporate authorities to issue bonds in payment of the installments.

The principal question presented for our decision is, had the municipal authorities of the city power to pass these sections 13 and 14 of the ordinance, so dividing the assessment into 10 installments, and providing for the issuing of bonds to pay the same? The ordinance was passed under the act of the legislature in force July 1, 1885, which authorized the corporate authorities of cities and villages to construct, maintain, and keep in repair drains, ditches, levees, dykes, and pumping houses for drainage purposes, by special assessment upon the property benefited thereby. Section 3 of that act is as follows: ‘All proceedings for the making of the improvement in this act mentioned, and for the maintenance and repair thereof, and for the levy and collection of the special assessment to defray the cost of the same, shall be in accordance with the provisions of article 9 of the general act for the incorporation of cities and villages, approved April 10, 1872.’ It is admitted that article 9 of the act mentioned as in force at the passage of the law in 1885 made no provision for, or in any manner authorized, the division of special assessments into installments, or authorized the issue of bonds to pay such assessments. It was not until the amendment to the act of 1872, passed April 29, 1887, that special assessments could be so divided. We held in Culver v. People, 161 Ill. 89, 43 N. E. 812, that by section 3 of the act passed May 2, 1873, authorizing the improvement of parks and boulevards by special assessment, which provided that the proceedings to levy and collect assessments should in all things conform to the provisions of this same article 9, the language of which is not materially different from that above quoted of the act of 1885, the legislature intended to adopt only the provisions of said article 9 as it existed in 1873, when the park and boulevard act was adopted, and not as it might be thereafter changed; and therefore the corporate authorities of West Chicago had no power, by ordinance passed March 28, 1893, under the act of May 2, 1873, to provide for the collection of an assessment for the improvement of a boulevard in installments. The decision in that case is based upon the rule that ‘an act which adopts by reference the whole or a part of another statute means the law as existing at the time of the adoption, and does not include subsequent additions or modifications of the statute so adopted, unless it does so by expressed or strongly implied intent,’ as laid down by Endlich on Interpretation of Statutes (section 85). See, also, other authorities cited in that opinion. If authority for the passage of sections 13 and 14 of this ordinance depends upon any amendment to article 9, passed since the act of 1885, the Culver Case is decisive against the validity of those sections. This we do not understand counsel for appellant to gainsay. But they insist that the power exercised in the passage of those sections is expressly given by the act of June 17, 1893, which they say is not an amendment to article 9, ‘but is an independent act, covering all cases of special assessment authorized by any law of this state.’ If the act of 1893 had purported, by its title or its language, to be an amendment ot the amendments of 1887 and 1891, there could have been no room for this contention. We held, however, in English v. City of Danville, 150 Ill. 92, 36 N. E. 994, that, while the act did not, on its face, profess to amend article 9, or any section thereof, but on its face appears to be an independent act, yet, from a consideration of its terms and provisions, it should be regarded as an amendment to the act of 1887 as amended by the act of 1891, and we said (page 95, 150 Ill., and page 995, 36 N. E.): ‘It relates to the same subject-matter, and, in effect, changes the sections of the act of 1887 relating to...