City of Chicago v. McDonald

• Decision Date: 24 October 1898
• Citation: 176 Ill. 404,52 N.E. 982
• Parties: CITY OF CHICAGO et al. v. McDONALD.
• Court: Illinois Supreme Court

176 Ill. 404

52 N.E. 982

CITY OF CHICAGO et al.

v.McDONALD.¹

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Bill by Michael C. McDonald against the city of Chicago and others to enjoin defendants from carrying into effect certain contracts for the removal of garbage in the city. From a decree for plaintiff, defendants appeal. Affirmed.

Cartwright and Phillips, JJ., dissenting.

Charles S. Thornton and Granville W. Browning (Darrow, Thomas & Thompson, of counsel), for appellants.

John Mayo Palmer and A. B. Jenks, for appellee.

WILKIN, J.

On December 15, 1897, Michael McDonald, on behalf of himself and other taxpayers of Chicago who would come into the suit and contribute to the expense thereof, filed his bill in chancery against the city of Chicago, Lawrence E. McGann, its commissioner of public works, Patrick Mulcaire and Francis C. Burk, partners, John Dowdle and Marvin Chamberlain, partners, and R. T. Hanrahan and J. T. Downey, partners. The prayer of the bill was that the defendants be perpetually enjoined from carrying into effect certain contracts by the city, through said commissioner of public works, with the other defendants, for the removal of garbage in designated districts of the city. The bill was afterwards amended, and a motion made for a temporary writ of injunction, which was heard on the bill and answer of the defendants, and a temporary writ ordered. Subsequently leave was had to file a new answer, and upon it the defendants moved to dissolve the injunction. Upon that motion the cause was tried as on a final hearing, and a decree entered overruling the motion, and decreeing that the injunction be made perpetual. To reverse that decree this appeal is prosecuted.

The principal question raised in this court is whether or not the contracts in question are illegal and void under that section of our constitution which prohibits cities from becoming indebted in excess of 5 per cent. on the valuation of their taxable property. This question presents for determination two propositions: First, do the contracts create an indebtendness, within the meaning of the constitution? and, second, was the city of Chicago indebted beyond the prescribed limit at the time of entering into the contract?

The language of section 12 of article 9 of the constitution of 1870 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, 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.’ While there would seem to be little difficulty in determining whether or not a city becomes indebted by entering into a particular contract for municipal purposes, it has not been found easy to do so in all cases within the meaning of constitutional and statutory provisions like this, the result being a conflict in the decisions of courts in different states. Some have held that a contract by a municipality to pay for the annual supply of necessaries, such as light and water, upon rendering the services or furnishing the supplies, is not the incurring of a present indebtedness, in the constitutional sense; but this court is committed to a contrary construction. Being called upon to construe the foregoing section of our constitution in the case of City of Springfield v. Edwards, 84 Ill. 626, Justice Scholfield, rendering the majority opinion of the court, said (page 632): ‘In considering what construction shall be given to a constitution or a statute, we are to resort to the natural signification of the words employed, in the order and grammatical arrangement in which they are placed; and if, when thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the instrument, then such meaning is the only one we are at liberty to say was intended to be conveyed.’ Justice Dickey, in his dissenting opinion, considered the rule of construction to be as stated in the majority opinion, also in the meaning of the words of the constitution as defined by Justice Scholfield, but he dissented from the view that to give those words that meaning would involve no absurdity or contradiction with other clauses of the constitution. It thus clearly appears that the words ‘to become indebted’ were, after full consideration, given by the court in that case their natural signification; and Justice Scholfield proceeds to determine their meaning, as follows: ‘There is no difficulty in ascertaining the natural signification of the words employed in the clause of the constitution under consideration, and to give them that meaning involves no absurdity, or contradiction with other clauses of the constitution. The prohibition is against becoming indebted,-that is, voluntarily incurring a legal liability to pay,-‘in any manner or for any purpose,’ when a given amount of indebtedness has previously been incurred. It could hardly be probable that any two individuals of average intelligence could understand this language differently. It is clear and precise, and there is no reason to believe the convention did not intend what the words convey. A debt payable in the future is obviously no less a debt than if payable presently; and a debt payable upon a contingency, as upon the happening of some event, such as the rendering of service or the delivery of property, etc., is some kind of a debt, and therefore within the prohibition. If a contract or undertaking contemplates, in any contingency, a liability to pay, when the contingency occurs the liability is absolute,-the debt exists,-and it differs from a present unqualified promise to pay only in the manner by which the indebtedness was incurred; and, since the purpose of the debt is expressly excluded from consideration, it can make no difference whether the debt be for necessary current expenses or for something else.' It was again said in Law v. People, 87 Ill. 385, speaking of the same provision (page 392): ‘The language of this clause is clear, explicit, and emphatic, that no city shall be allowed to become indebted, in any manner or for any purpose, beyond the prescribed limit. The city of Chicago was indebted beyond the limit when these certificates were issued, and if they, in any manner or for any purpose, create an additional indebtedness beyond that limit, they are clearly prohibited. The language prescribing the limit is so plain as to admit of no doubt, and forbids all construction, and the provision must be enforced as it is written.’ And also in Culbertson v. City of Fulton, 127 Ill. 30, 18 N. E. 781, we said (page 36, 127 Ill., and page 782, 18 N. E.): ‘By entering into the contract on August 15, 1887, the city ‘became indebted.’ The obligations entered into by the terms of the contract constituted such an indebtedness as is contemplated by the language of the constitution. It cannot be said that the indebtedness did not come into being until the work was completed and accepted by the city. The city bound itself to pay for the work when it should be completed, and could be compelled to do so, if the work should be done according to the contract.' The language in City of Springfield v. Edwards, supra, as to a debt payable in the future, or upon a contingency, was cited and quoted. It thus appears that this court has given effect to the language of the constitution in its plain and commonly accepted signification.

The question has frequently arisen whether a municipal corporation can incur an indebtedness in excess of 5 per cent. of its taxable property for necessary supplies, such as light and water. In Prince v. City of Quincy, 105 Ill. 138, the city had contracted with Prince to construct, maintain, and keep in operation within the limits of the city a system of waterworks; the city agreeing to pay him a certain sum per annum, in monthly installments, for the use of water for fire and other purposes, the contract to run for a period of 30 years, and, if not renewed, the city to purchase the works for a cash value. The works were constructed according to the contract, and the agreement was observed by the parties for a number of years, when the city diclined to further fulfill its terms, upon the ground that the agreement had been entered into without legal authority on the part of the city, and so notified Prince. Thereupon he brought his action to recover damages for a failure on the part of the city to perform its part of the agreement. The city filed a plea setting up that at the time of making the agreement in suit it was, and had continued to be, otherwise indebted in an amount exceeding the constitutional limit. To this plea the plaintiff replied that the money sought to be recovered pertained to ‘the ordinary expenses of the defendant in the administration of the affairs and government of the city, and that at the time of the making of said contract the said several sums of money so provided to be paid monthly by said defendant to said plaintiff, together with other ordinary expenses of the government of the said defendant, were within the limits of the current revenues of said defendant.’ In passing upon the sufficiency of the replication, we said (page 142): ‘While the provision of the constitution just cited declares, in emphatic terms, that a city or other municipality whose existing indebtedness already exceeds the constitutional limit, as was the case here, shall not become further indebted ‘in any manner or for any purpose,’ it is seriously contended by counsel for appellant that a municipality thus circumstanced may become indebted for supplies to meet its ordinary wants and necessities. To so construe the constitution would be to add a provision, in the nature of an...