Cornell v. People Ex Rel. Charles Walsh.

• Decision Date: 30 September 1883
• Citation: 107 Ill. 372,1883 WL 10312
• Parties: PAUL CORNELLv.THE PEOPLE ex rel. Charles Walsh.
• Court: Illinois Supreme Court

107 Ill. 372

1883 WL 10312 (Ill.)

PAUL CORNELL

v.THE PEOPLE ex rel. Charles Walsh.

Supreme Court of Illinois.

Filed at Ottawa May 10, 1883.Rehearing denied September Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. E. S. WILLIAMS, for the appellant:

The opposition between an act of the legislature and the constitution must be strong and clear to justify the courts in holding the act unconstitutional. Lane v. Dorman, 3 Scam. 238; People v. Marshall, 1 Gilm. 672; People v. Hatch, 33 Ill. 130; Chicago, Danville and Vincennes R. R. Co. v. Smith, 62 Id. 268.

The park commissioners, by the vote of the people, became a corporate authority, and are the agents by whom, in part, the people of the State carry on the government. People v. Salomon, 51 Ill. 37; Wilcox et al. v. People ex rel. 90 Id. 192; People ex rel. v. Walsh et al. 96 Id. 232.

Being a public municipal corporation, it is subject to legislative control, there being no vested right in its franchises. County of Richland v. County of Lawrence, 12 Ill. 8; Trustees of Schools v. Tatman, 13 Id. 30; Dennis v. Maynard, 15 Id. 480; People v. Power, 25 Id. 191; People ex rel. v. Brislin, 80 Id. 432; People ex rel. v. Brown, 83 Id. 97; Buffett et al. v. Great Western R. R. Co. 25 Id. 355; Coles v. Madison County, Breese, 115; United States v. Railroad Co. 17 How. 329; State Bank v. Knoop, 16 Id. 369; Sloan v. State, 8 Blackf. 361; 1 Dillon on Mun. Corp. sec. 54.

The legislature may change the mode of appointing the commissioners without a vote of the people, as well as enlarge their powers. People ex rel. v. Brislin, 80 Ill. 423; Bank of the Republic v. Hamilton County, 21 Id. 53; People ex rel. v. Wright, 70 Id. 395; People ex rel. v. Auditor, 1 Scam. 537; People v. Haskell, 5 Cal. 357; City Council v. Sweeney, 44 Ga. 463; Davis v. State, 7 Md. 157; West Chicago Park Comrs. v. Telegraph Co. 103 Ill. 33.

The legislature has the right to repeal the charter of this corporation, and thereby abolish all offices under it. People ex rel. v. Brown, 83 Ill. 97; People ex rel. v. Power, 25 Id. 191; United States v. Railroad Co. 17 How. 329; 1 Dillon on Mun. Corp. (3d ed.) sec. 54; People v. Morris, 13 Wend. 331; Cooley on Const. Lim. sec. 235, p. 290; People ex rel. v. Brislin, 80 Ill. 423; People ex rel. v. Wright, 70 Id. 338; Wilcox et al. v. People, 90 Id. 186; Andrews v. People, 83 Id. 529; People v. Morgan et al. 90 Id. 558; People v. Walsh et al. 96 Id. 232; Dunham v. People, Id. 333.

Mr. J. L. HIGH, also, for the appellant:

It is claimed there can be no change in the method of selecting or appointing municipal officers invested with taxing powers, unless such change shall receive the assent of a majority of the tax-payers affected thereby. The legislature, unless restrained by constitutional restrictions, has the power to change, modify or destroy municipal corporations. Cooley on Const. Lim. 192; Coles v. County of Madison, Beecher's Breese, 154; People v. Wren, 4 Scam. 269; County of Richland v. County of Lawrence, 12 Ill. 1; Trustees of Schools v. Tatman, 13 Id. 27; People v. Power, 25 Id. 187; Mayor of Baltimore v. The State, 15 Md. 376; Dartmouth College v. Woodward, 4 Wheat. 693; Bristol v. New Chester, 3 N. H. 524; East Hartford v. Hartford Bridge Co. 10 How. 511; City of Philadelphia v. Field,58 Pa. St. 320.

All other amendments to the park acts have been held constitutional. People v. Brislin, 80 Ill. 423; Andrews v. People, 83 Id. 529; People v. Walsh, 96 Id. 232; West Chicago Park Comrs. v. Telegraph Co. 103 Id. 33; People v. Morgan, 90 Id. 558.

Municipal charters are not contracts, but are granted for public purposes, and may be amended or repealed, at the discretion of the legislature. East Hartford v. Hartford Bridge Co. 10 How. 511; Cooley on Taxation, 56, 192.

Mr. LUTHER LAFLIN MILLS, State's Attorney, and Mr. A. W. GREEN, for the appellee:

The act of February 2, 1869, when assented to by the people of the towns of South Chicago, Hyde Park and Lake, created a public municipal corporation, of which the South Park Commissioners are the corporate authorities. People v. Salomon, 51 Ill. 37; People v. Chicago, Id. 58; People v. Walsh, 96 Id. 232.

The constitution of 1848, which was in force when this act was passed, provides that the corporate authorities of cities, towns, and other municipal corporations, may be vested with power to collect and assess taxes for corporate purposes. Const. 1848, art. 9, sec. 5.

This section is a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other than the corporate or local authorities of the municipality or district to be taxed; and corporate authorities are those municipal officers who are either directly elected by the people to be taxed, or appointed in some mode to which they have given their assent. Harward v. St. Clair Drainage Co. 57 Ill. 130; People v. Salomon, 51 Id. 37; People v. Mayor, Id. 17; Hessler v. Drainage Comrs. 53 Id. 105; Lee v. Ruggles, 62 Id. 427; Trustees v. People, 63 Id. 299; Board v. Houston, 71 Id. 318; Gage v. Graham, 57 Id. 144; People v. McAdams, 82 Id. 356.

Section 9, article 9, of the constitution of 1870, must be construed in the same manner as the kindred section in the constitution of 1848. Updike v. Wright, 81 Ill. 49; Dunham v. People, 96 Id. 331; People v. Harper, 91 Id. 357.

The act of 1881, under which the appointment was made, makes it unlawful for any judge, etc., to appoint any park commissioners, and provides that the Governor shall appoint such commissioners of any public park or parks not under the control of any city, village, or other municipal corporation. As this park was and is under the control of a municipal corporation, the Governor has no power, under the act, to appoint. People v. Salomon, 51 Ill. 37; People v. Morgan, 90 Id. 558; People v. Walsh, 96 Id. 232.

The act in question contravenes the constitutional limitation that the persons to exercise the powers of taxation granted shall be “corporate authorities,”-- that is, elected by the people, or appointed in some mode to which they have assented. Lovingston v. Wider, 53 Ill. 303; Wider v. East St. Louis, 55 Id. 133; People v. Canty, Id. 33; Hinze v. People, 92 Id. 406.

The act must necessarily produce a result forbidden by the constitution, and therefore can not be upheld. People v. Cooper, 83 Ill. 585.

While, perhaps, the first section of this act, standing by itself, may not be invalid, still, as the evident purpose of the whole act is to accomplish a single object only,--namely, to change the method of appointment of park commissioners,--the second section being void the whole act must fall. Cooley on Const. Lim. 178, 179; People v. Cooper, 83 Ill. 585; Hinze v. People, 92 Id. 406.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an information in the nature of a quo warranto, brought against Paul Cornell, to determine his right or authority to hold the office of park commissioner in a corporation in Cook county, known as the South Park Commissioners, which was created by an act of the General Assembly approved February 24, 1869, entitled “An act to provide for the location and maintenance of a park for the towns of South Chicago, Hyde Park and Lake.” By section 1 of the act, five persons, to be appointed by the Governor, together with their successors, are constituted a board of park commissioners, to be known as the South Park Commissioners. Under section 2 of the act, the term of office of one of the commissioners would expire on the 1st day of March, 1870, and the term of office of another on the first day of the next succeeding March, and so on, until the term of all those first appointed would expire. Section 2 also contains this provision: “All vacancies occurring in said board shall be filled by the appointment of the judge of the circuit court of Cook county, when such vacancies shall occur.” The 8th section provides, that for any deficiency arising from acquiring title to the park, and for the payment of expenses of maintaining and improving the park, and other expenses, the commissioners are authorized to borrow a sum of money not exceeding $2,000,000, with authority to issue bonds. The 9th section empowers the commissioners to levy an annual tax, not exceeding $300,000 in any one year, for the payment of interest on the bonds issued, and the expenses of the improvement and maintenance of the park for the current year. The 18th section provides for an election to be held in the towns of South Chicago, Hyde Park and Lake, for the voters to vote whether they will accept the provisions of the act. The election was held, and the act adopted by the people.

In May, 1881, the legislature passed an act, sections 1 and 2 of which are as follows:

“Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That hereafter it shall not be lawful for any judge or judges of any circuit court in this State to appoint any park commissioner, or fill any vacancy in any such office of park commissioner.

Sec. 2. The Governor of the State of Illinois shall appoint all park commissioners hereafter to be appointed under and by virtue of any act or acts providing for the location and maintenance of any public park or parks not under the control of any city, village or other municipal corporation, and shall fill all vacancies which may hereafter occur in any such office of park commissioner or board of park commissioners, by like appointment, anything in any such act or acts to the contrary notwithstanding.”

After the passage of this act a vacancy occurred in the board, and the Governor appointed Cornell, who claimed the right to hold the office under the appointment, by virtue of section 2 of the act.

The act of 1869, which created this corporation, has been before this court in a number of cases, and the force and effect of many of its...