People Ex Rel. Henry B. Miller v. Cooper

• Citation: 1876 WL 10407,83 Ill. 585
• Parties: THE PEOPLE ex rel. Henry B. Miller, Treasurer, etc.v.E. J. COOPER et al.
• Decision Date: 30 September 1876
• Court: Illinois Supreme Court

83 Ill. 585

1876 WL 10407 (Ill.)

THE PEOPLE ex rel. Henry B. Miller, Treasurer, etc.

v.E. J. COOPER et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MARTIN R. M. WALLACE, Judge, presiding.

This was an application to the county court of Cook county, at the July term, 1875, in the name of The People, on the relation of Henry B. Miller, county treasurer and ex officio collector of taxes, for a judgment against certain real estate in Cook county for delinquent taxes. Objections were interposed by E. J. Cooper and others. Upon the trial below, the court rejected all the evidence offered in the cause, upon the ground that under the law and upon the record, the court had no jurisdiction to try the facts to which the proofs related, or to render any judgment against the real estate mentioned for the taxes charged thereon--so judgment was entered in favor of the objectors, from which the people took this appeal.

The question of the jurisdiction in the court below depends upon the constitutionality of the act of April 15, 1873, known as the “city tax act,” and that is the only question presented in this case.

Mr. T. LYLE DICKEY,FNa1 Mr. FRANCIS ADAMS, Mr. M. F. TULEY, Mr. C. H. MORSE, and Mr. ELLIOTT ANTHONY, for the appellants.

FNa1. This case was originally submitted at the September term, 1875, and finally determined at the September term, 1876, upon an application for a rehearing. Mr. JUSTICE DICKEY, having been of counsel in the cause before he came upon the Bench, took no part in its decision.Messrs. RICHMOND & CONDEE, and Mr. EDWARD ROBY, for the appellees; Messrs. BENNETT, KRETZINGER & VEEDER, for the appellee The National Life Ins. Co.; Mr. H. B. HURD, for the appellees Maxson et al. and Hurd et al.; Messrs. SNOWHOOK, JOHNSTON & GRAY, for the appellees Henry Cordes et al.; and Mr. WM. HOPKINS, for the appellees Geo. W. Thomas et al.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Judgment was rendered in this court, and an opinion filed, affirming the judgment of the court below in the present case, in vacation, after the September term, 1875. A petition for rehearing having been presented, supported by an elaborate and able argument, we have again carefully considered the question by which the judgment was controlled, but still feel compelled to adhere to our former conclusion. We have, however, availed of this opportunity to make some changes in the language of our opinion, with the view of more fully and clearly stating the reasons by which we are governed, and the present opinion will, therefore, be substituted for that formerly filed.

When the cases, of which The People ex rel. Miller v. Otis, 74 Ill. 384, was selected as the representative, were before us, at the January term, 1875, we refrained from considering the objection then urged against the constitutionality of the act of April 15, 1873, known as the “city tax act,” because, in our opinion, there were defects in the provisions of the act, which, aside from any question of its constitutionality, rendered its enforcement impracticable, and we indulged the hope that, in future legislation, all grounds of constitutional objection might be avoided. In this, however, we have been disappointed, for the amendatory act of April 7, 1875, attempts no more than to obviate the objections to the practical enforcement of the act, as indicated in our opinion in the Otis case, and we are, hence, now compelled, reluctant as we are to enter upon a question of so much delicacy and importance, either to sustain or to declare inoperative the act, on constitutional grounds.

By one of the clauses of section 22, of article 4 of the present constitution, the General Assembly is prohibited from passing “any local or special law incorporating cities, towns or villages, or changing or amending the charter of any town, city or village.”

It is obvious that the prohibition of the enactment of “local or special laws” for these purposes, is equivalent to a command that general laws alone shall be enacted therefor; for the words “local” or “special” are clearly used in contradistinction to the word “general,” and there being no power to enact “““local or special” laws, there can be no other than “general” laws enacted. It will be observed, too, that no distinction is made between “incorporating” and “““changing and amending charters”--whether the one or the other or both shall be sought to be done, it can not be by a “local or special law,” and must, therefore, be by a “general law.”

“General laws” are said to be “those which relate to or bind all within the jurisdiction of the law making power, limited as that power may be in its territorial operation or by constitutional restraint.” Sedgwick on Stat. and Const. Law, p. 30. The number of persons upon whom the law shall have any direct effect, may be very few, by reason of the subject to which it relates, but it must operate equally and uniformly upon all brought within the relations and circumstances for which it provides. People ex rel. v. Wright, 70 Ill. 398.

The evil supposed to exist which led to the adoption of the clause of the constitution under consideration, was dissimilarity in the provisions of charters of different cities, towns and villages, and while it was not designed, by the mere act of adopting the constitution, to repeal the provisions of existing charters any further than they were in conflict with other provisions of the constitution which became operative without the aid of legislation, it was designed that no city, town or village should thereafter become incorporated, or have its charter changed or amended, except by virtue of a general law. This, we think, is manifest, both from the proceedings of the convention which framed the constitution, and the peculiar language of the constitution itself.

If no city, no town or no village can become incorporated or have its charter changed or amended, save by virtue of the provisions of a general law, operating “equally and uniformly upon all brought within the relations and circumstances for which it provides,” it follows that all cities, all towns or all villages becoming incorporated, and all cities, all towns or all villages having their charters changed or amended, must, to the extent of such change or amendment, be brought under the same law. It is not admissible, either by the letter or the spirit of the constitution, that dissimilarity in character of organization or powers, in municipalities of the same class or grade, shall be created or perpetuated by enactments of the General Assembly.

This does not, however, imply, as seems to be supposed, that there shall be no liberty in the citizens of localities possessing sufficient population to render it desirable to become incorporated as a city, town or village, to do so or not, as they may elect; or that cities, towns or villages incorporated under special charters prior to the adoption of the constitution, may not elect to change their charters for the provisions of general laws for incorporating cities, towns or villages.

The legislature might, doubtless, enact a law arbitrarily incorporating municipalities, or changing or amending existing charters, without consulting the wishes of the inhabitants to be affected; or, it might provide a system by which municipalities should become incorporated, or for changing and amending existing charters, in the discretion and through the agency of those to be affected--only, in either case, the law must be general, to have any effect. But it is solely to what assumes to be a law obligatory upon organized municipalities, that the present discussion has any reference.

Nor does the prohibition of the constitution have any application to the character of the ordinances that may be adopted by municipalities properly incorporated, which are within their unquestioned powers. It restricts only the General Assembly in the enactment of laws for charters or for changing or amending charters, and in nowise affects the municipality in exercising or not exercising the powers with which it is lawfully invested.

To this expression of our views with regard to the construction of the clause of the constitution under consideration, we think it necessary but to add, that it is the substance, and not the mere form given to the enactment, which must...