City of Decatur v. German
| Decision Date | 14 February 1924 |
| Docket Number | No. 15702.,15702. |
| Citation | 142 N.E. 252,310 Ill. 591 |
| Parties | CITY OF DECATUR v. GERMAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Petition by the City of Decatur for confirmation of assessments for a local improvement, in which proceedings W. M. German and others filed objections. From a judgment sustaining the objections and dismissing the petition, the City appeals.
Affirmed.
Appeal from Macon County Court, John H. McCoy, Judge.
Lee Boland, Corp. Counsel, of Decatur, for appellant.
McDavid, Monroe & Hershey, of Decatur, for appellees.
The city of Decatur has adopted and is operating under the Commission Form of Municipal Government Act. It has a population of less than 50,000. On the 17th day of July, 1923, the council adopted a resolution orginating a public improvement, and such proceedings were had that a public hearing was held and a resolution adopted adhering to the proposed improvement; also an ordinance was passed and other steps taken, and an assessment roll was filed. At the hearing of the confirmation of the assessments, property owners who are appellees here filed objections to the confirmation. The county court sustained the objections and dismissed the petition, from which judgment the city of Decatur prosecuted this appeal.
The question material to a determination of the case is whether the improvement should have been originated by a board of local improvements or with the city council.
Section 6 of the Local Improvement Act of 1897 (Smith-Hurd Rev. St. 1923, c. 24, § 703) provided who should constitute the board of local improvements. It was amended several times, and as amended in 1913 provided that in cities having a population of less than 50,000, and in villages and incorporated towns, the board of local improvements shall consist of the mayor or president of the village or town, who shall be president of the board, and the public engineer and the superintendent of streets, when such officers are provided for by ordinance, and if no such officers are provided for, the council or board of trustees shall by ordinance designate two or more members of such body, who shall, with the mayor as president, constitute the board of local improvements. In 1915 section 6 was again amended by re-enacting the section as amended in 1913 and adding a proviso that when cities having a population of less than 50,000, and villages and towns, had adopted or should adopt the Commission Form of Municipal Government Act, it shall be lawful to provide by ordinance that the board of local improvements should consist of the mayor and any two or more of the commissioners, regardless of whether or not the offices of public engineer and superintendent of streets are provided for by ordinance. In 1917 the Legislature amended the Commission Form of Municipal Government Act, and provided that in cites organized under or adopting that act ‘the council shall have and possess, an the council and its members shall exercise all executive and legislative powers and duties now had, possessed and exercised by the board of local improvements, provided for, in and by an act entitled ‘An act concerning local improvements,’ approved June 14, 1897, in force July 1, 1897, and all acts amendatory thereto,' etc.
In City of Chrisman v. Cusick, 290 Ill. 297, 125 N. E. 290, the court considered objections to a local improvement. The city of Chrisman had adopted the commission form of government, and the scheme for the improvement originated with the board of local improvements and all the proceedings up to the passage of the ordinance were conducted by the board. It was contended in support of the validity of the proceeding that the act of 1917 contained no express repeal of the proviso to the act of 1915 amending section 6, and that proviso should not be held to have been repealed by implication. The court held the act of 1917 did not attempt to repeal the general provisions of the Local Improvement Act, but eliminated the board of local improvements in cities which had adopted the commission form of governmentand conferred the powers and duties of such board on the council. The court said, even if the question of repeal by implication was involved, the two acts could not be reconciled and the latest expression of the Legislature must prevail.
The material question presented by this record for decision is whether, under the present state of the law, the council of a city which is operating under the commission form of government may lawfully originate a local improvement or whether it must be originated by the board of local improvements. This court in the case above cited held the proviso to the amendment of section 6, in 1915, which provided for a board of local improvements in cities under the commission form of government to consist of the mayor and two or more commissioners, did not govern after the amendment to the Commission Form of Government Act in 1917, which eliminated the board and conferred its powers and duties on the council. Did the Legislature intend, by re-enacting the amendment of 1915, to repeal the amendment of 1917 abolishing the board of local improvements in cities under the commission form of government and conferring its powers and duties upon the council? The provisions of the act of 1923 for a board of local improvements in cities under the commission form of government are identical with the act of 1915, which we held in the Chrisman Case was superseded by the act of 1917.
Appellant contends the re-enactment in 1923 of section 6 as amended in 1915 could not affect the intermediate act of 1917; that the 1917 act remained in force and effect, and it cites section 2 of chapter 131 of Smith's Statutes, which reads:
‘The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions, and not as a new enactment.’
The situation we have to deal with is whether the act of 1917, as affecting cities under the commission form of government, is repugnant to and irreconcilable with the act of 1923. We held in the Chrisman Case the act of 1915 was superseded by that of 1917. That opinion was filed in December, 1919, and the Legislature is presumed to have known of that decision. Four years after the decision in that case the Legislature re-enacted the identical provision which we held was irreconcilable with the act of 1917. The act of 1923 contains no express repealing clause, and, it is true, repeals are not favored by implication, but an implied repeal must result when the terms of the later act are repugnant to and cannot be harmonized with the earlier act. The primary rule of the construction of statutes is to ascertain and give effect to the intention of the lawmaking body. The intent of the statute is the law, and the object of all interpretation is to ascertain that intent. The intention is to be...
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