L'Hote v. Vill. Of Milford

• Decision Date: 24 October 1904
• Citation: 212 Ill. 418,72 N.E. 399
• Parties: L'HOTE et al. v. VILLAGE OF MILFORD.
• Court: Illinois Supreme Court

212 Ill. 418

72 N.E. 399

L'HOTE et al.

v.VILLAGE OF MILFORD. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Iroquois County Court; Frank Harry, Judge.

Proceedings by the village of Milford for the confirmation of a special tax for a local improvement. Eugene L'Hote and others appeared and moved for the dismissal of the proceedings. From a judgment of confirmation, they appeal. Reversed.

Robert Doyle, for appellants.

Morris & Hooper, McClellan Kay and J. H. Dyer, for appellee.

BOGGS, J.

This is an appeal from the judgment entered in the county court of Iroquois county confirming a special tax levied under the authority of an ordinance adopted by the board of trustees of the village of Milford, providing that Grant avenue, in the village, from the north line of Jones street to the south line of Frederick street, a distance of two blocks, should be improved by paving the roadway of the same with brick and curbing it with sandstone curbing. A motion to dismiss the proceeding, based on the fact that no petition of the owners of the property on the line of the proposed improvement and to be affected thereby had been presented asking that the avenue be so improved, was entered and overruled. The denial of the motion is assigned as for error.

Section 4 of the act entitled ‘An act concerning local improvements,’ approved June 14, 1897 (Laws 1897, p. 103), as amended by the act approved April 19, 1899 (Laws 1899, p. 95; Starr & C. Ann. St. Supp. 1902, p. 149, c. 24), requires that, in cities, towns, and villages of the population of 50,000 or less by the last preceding census of the United States, no ordinance for making any improvements to be paid for by special assessment or special taxation of contiguous property should be adopted unless the owners of onehalf of the property abutting on the line of the improvement should petition therefor, and in such municipalities having a population of 10,000 and less, not unless a majority of resident property owners affected by such proposed improvement should also petition for the same. The appellee village has a population of 1,077, and under said section 4 of the act of 1897, as amended by the act of 1899, a petition was essential to the power of the village board to adopt the ordinance. At the session of the General Assembly of 1903 two acts amendatory of said section 4 were adopted. The first of said amendatory acts of 1903 was adopted May 11th, and reads as follows:

‘Sec. 4. When any such city, town or village shall, by ordinance provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both. But in cities, towns or villages, having a poupulation of less than 50,000 and more than 20,000, ascertained as aforesaid [i. e., the last preceding census of the United States], no ordinance for making any local improvement to be paid by special assessment or by special taxation of contiguous property, shall be adopted, unless the owners of one-half of the property abutting on the line of the proposed improvement, shall petition for the same.’ Laws 1903, p. 101.

The second of said amendatory acts of 1903 was adopted May 15th, and reads as follows:

‘Sec. 4. When any such city, town or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both. But in cities, towns and villages having a population of less than twenty-eight thousand (28,000) and more than 20,000, ascertained as aforesaid [i. e., the last preceding census of the United States], no ordinance for making any local improvement to be paid by special assessment or by special taxation of contiguous property, shall be adopted, unless the owners of one-half of the property abutting along the line of the proposed improvement shall petition for the same: provided, however, that on a petition signed by one hundred property owners in cities, towns and villages containing a population, ascertained as aforesaid, of between twenty-eight thousand (28,000) and fifty thousand (50,000), the question may be submitted to a vote of the people at any general or special election, whether or not said improvements can be made, unless the same is petitioned for by at least one-half of the property owners abutting on the line of said improvement, and if a majority of all the votes cast at such election shall be in favor of said proposition, then a petition, as hereinbefore provided, shall be necessary in such city, town or village before such an ordinance can be passed.’ Laws 1903, p. 101; Starr & C. Ann. St. Supp. 1903, p. 70, c. 24.

The appellee village having, as before said, a population of 1,077 inhabitants, it is not necessary, under either of the amendatory acts of 1903, to the jurisdiction of the municipal board to adopt an ordinance for the construction of local improvements by special assessment or by special taxation, that a petition of property owners shall be presented to the board of trustees asking that the improvement be made. Under section 4 of the act of 1897, as amended by the act of 1899, a petition signed by the owners of one-half of the property abutting on the line of the improvement, and also by a majority of the resident property owners, is necessary to the adoption of such an ordinance by the board of trustees of the village.

It is urged, however, that each of such amendatory acts adopted in 1903 contravenes the prohibition of the Constitution of 1870 against the enactment of local or special legislation. Section 22 of article 4 of the Constitution of 1870 declares ‘the General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Incorporating cities, towns of villages, or changing or amending the charter of any town, city or village. * * * granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise.’

The village of Milford was incorporated under the provisions of the general incorporation act providing for the incorporation of cities and villages. This general incorporation act is the charter of the village, and of all cities and villages in the state organized under it. Enactments empowering the city councils of cities or boards of trustees of villages to construct local improvements by special assessment or by special taxation, if legal, become a part of the charters of such municipalities, and acts amendatory of such enactments constitute changes or amendments of the charters of such municipalities, and such amendatory acts, it is declared by said section 22 of article 4 of the Constitution, shall be uniform and general in their operation, and not local or special. People v. Cooper, 83 Ill. 585;Potwin v. Johnson, 108 Ill. 70;Bessette v. People, 193 Ill. 334, 62 N. E. 215,56 L. R. A. 558. Enactments which deny to the governing body of certain only of the cities and villages of the state power to adopt ordinances for the construction of local improvements, except when petitioned so to do by the owners of property affected by the improvement, at the same time clothe the property owners in such cities and villages with a privilege and an immunity not possessed by the owners of property in the other cities and villages of the state, and are for that reason unconstitutional, if local or special in character. Neither of the amendatory acts of 1903 contains an emergency clause, nor does the latter in express terms purport to repeal the former of them, nor does either of them expressly repeal the amendatory act of 1899, thought they are repugnant to each other and also to the act of 1899. As we are of the opinion that both of said acts of 1903 are unconstitutional, it is not important to consider the effect of such repugnancy. Each of these amendatory acts of 1903 changes or amends the charters of certain only of the cities, towns, and villages of the state, and also grants to owners of property in certain only of the cities, towns, and villages of the state the privilege of inducing and empowering the municipality, by petition, to construct a local improvement, or of refusing to invest the city with power to make a local improvement by special assessment or special taxation, by declining to join in a petition therefor-privileges and immunities which are denied to or not given or granted to the owners of property in other cities, towns, or villages of the state. These acts, therefore, attempt to legislate in matters as to which section 22 of article 4 of the Constitution of 1870 prohibits the enactment of local or special laws. If the amendatory acts are local or special laws, they are unconstitutional and invalid.

A law is not to be denominated local simply because it may operate only in certain of the municipalities of the state, if, by its terms, it includes and operates uniformly throughout the state under like circumstances and situation. The cities and villages of the state may be classified for...