Wilson v. Bd. of Trs. of Sanitary Dist. of Chicago

• Citation: 27 N.E. 203,133 Ill. 443
• Parties: WILSON v. BOARD OF TRUSTEES OF SANITARY DISTRICT OF CHICAGO et al.
• Decision Date: 12 June 1890
• Court: Supreme Court of Illinois

133 Ill. 443

27 N.E. 203

WILSON

v.BOARD OF TRUSTEES OF SANITARY DISTRICT OF CHICAGO et al.¹

Supreme Court of Illinois.

June 12, 1890.

Appeal from circuit court, Cook county; O. W. HORTON, Judge.

Bill by Marshal J. Wilson against the Board of Trustees of Sanitary District of Chicago, and the individual members of said board, to restrain the defendants from issuing bonds. The circuit court dismissed the bill on demurrer for want of equity, and the complainant appeals. Complainant's bill proceeded upon the theory that the act of May 29, 1889, (Rev. St. Ill. c. 24, § 343 et seq.) was unconstitutional. The provisions of this act are stated in the case of People v. Nelson, post, 217.

A. M. Pence, for appellant.

Wilson & Moore, for appellees.

Edward Osgood Brown, amicus curiae.

SCHOLFIELD, J.

The contentions in the present case, on behalf of appellant, as formulated by his counsel, are: ‘(1) That the sanitary district is a drainage district within the meaning of section 31, art. 4, of the constitution, and that such provision of the constitution is a limitation upon the powers of the general assembly to authorize such improvement to be made in any other way than as provided therein, viz., by special assessment. (2) That the improvement in question is a local improvement, and under section 9, art. 9, of the constitution, the corporate authorities of cities, towns, and villages alone can make same; that the municipal corporation in question is neither a city nor a town nor a village, nor do the officers thereof exercise the powers of any city, town, or village, or of any number thereof, in combination. (3) The second paragraph of said section 9, art. 9, although it gives all municipal corporations power to assess and levy taxes for all other corporate purposes, necessarily excludes from such corporations the power to raise revenue by general taxation for the purpose of a local improvement, which this is. (4) The indebtedness dur from the cities, villages, and towns included within the boundaries of this district is much beyond 5 per cent. of the value of the taxable property therein, as ascertained by the last assessment for state and county taxes. Complete power is given to the city of Chicago, under its charter, to prosecute and make the improvement contemplated, and it is manifest that this new corporation was created for the sole purpose of evading section 12, art. 9, in regard to the limit placed upon the indebtedness of such city. (5) The act in question is a local law, as is apparent. This is not objectionable if the power of the assembly to pass this act is referred to the drainage section of the constitution, but, if not governed by the drainage section, then it is obnoxious to section 22, art. 4, in regard to special legislation. It is an amendment of the city incorporation act, and it grants privileges and franchises to a corporation by special act.’

In the view that we take of these contentions, they involve but three general questions: (1) Is it within the power of the general assembly, under our constitution, to authorize the formation of sanitary districts, disregarding the existence and boundaries of pre-existing municipal corporations, and invest their corporate authorities with powers of general taxation for sanitary purposes? (2) If this shall be answered in the affirmative, are the corporate authorities of such districts limited in the amount of indebtedness which they may incur, under section 12, art. 9, of the constitution, by the amounts of pre-existing indebtedness of other municipal corporations covering the same, or a part of the same territory? (3) Is the act under which the district, whose corporate authorities are here sought to be enjoined, was formed, local or special legislation, within the prohibition of section 22, art. 4, of the constitution? It will be most convenient for us to observe this order in considering and passing upon the questions discussed in the arguments of counsel.

1. It has been stated, and frequently repeated, in decisions of this court, that the constitution of the state is not to be regarded as a grant of powers to the legislative department, but that, on the contrary, it is rather to be regarded as a restriction upon its powers; that, the whole legislative power of the state being conferred by the constitution upon the general assembly, every subject within the scope of civil government not withdrawn from its authority may be acted upon by that body. People v. Salomon, 51 Ill. 37;Sawyer v. City of Alton, 3 Scam. 127;Field v. People, 2 Scam. 79;Ruggles v. People, 91 Ill. 256;Richards v. Raymond, 92 Ill. 612;Harris v. Board, 105 Ill. 445;Association v. Lounsbury, 21 Ill. 510;Porter v. Railroad Co., 76 Ill. 561;Munn v. People, 69 Ill. 80.

Our first inquiry here, therefore, must be, is the general assembly prohibited, by our present constitution, from authorizing the formation of sanitary districts, disregarding pre-existing municipal corporations, and investing the corporate authorities thereof with powers of general taxation, within such districts, for the purposes for which such districts are authorized to be formed? The rule is, language restricting the legislative power of the general assembly must be construed strictly. People v. Wilson, 15 Ill. 392. And, unless it shall then clearly appear that the legislation in question is within the terms of the restriction, it must be sustained; if it be doubtful only, whether it is or not, the doubt must go in favor of the validity of the action of the general assembly. Insurance Co. v. Swigert, 104 Ill. 653;Knickerbocker v. People, 102 Ill. 218;Wulff v. Aldrich, 124 Ill. 591, 16 N. E. Rep. 886; People v. Marshall, 1 Gilman, 672.

It is not contended that there is any express denial in the constitution of power in the general assembly to authorize the formation of sanitary districts, but the contention is that it is denied by necessary implication. Upon an examination of the constitution, it will be seen that article 10 of that instrument provides for the organization of counties and for county government, and that in other articles it is contemplated that there will be local government, for public purposes, designated as ‘cities,’ ‘towns,’ ‘villages,’ ‘school-districts,’ and ‘other municipal corporations;’ but there is no specification of the powers that shall be conferred upon either, and no prohibition of the withdrawal of powers once conferred upon one, and thereafter conferring them upon another. In these respects the present constitution does not differ from the constitutions of 1818 and 1848. In Shaw v. Dennis, 5 Gilman, 405, and Dennis v. Maynard, 15 Ill. 477, which presented questions arising upon a statute enacted under the constitution of 1818, it was held that it was competent for the general assembly to arbitrarily create a district for the purpose of building and repairing a bridge, and to impose taxes therefor upon persons and property within the district. The constitution of 1848, however, contained this provision, (section 5, art. 9:) ‘The corporate authorities of counties, townships, school-districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same; * * *’ and it was held under this section that no other corporate authorities than those of counties, townships, school-districts, cities, towns, and villages could be vested with power to assess and collect taxes for corporate purposes, (Harward v. Drainage Co., 51 Ill. 130, People v. Mayor, Id. 17;) and this upon the ground that the enumeration of certain corporations is the exclusion of all not enumerated. But no case has been found in which it was ruled that, had this enumeration been omitted, other municipal corporations than those enumerated could not have been vested with power to assess and collect taxes for corporate purposes. On the contrary, the omnipotence of the general assembly in all matters relating to the authorization of the formation of municipal corporations, and investing them with powers of local government, except in so far as prohibited by the constitution, has been often asserted. Thus in People v. Salomon, supra, the constitutionality of a statute authorizing the formation of a district for park purposes by the union of two or more towns, pursuant to an affirmative vote of the electors of such towns, respectively, and investing commissioners named in the act as its corporate authorities, with powers of taxation, was sustained. And it was, among other things, said in the opinion: ‘There is no protection which we have been able to discover, and we have been pointed to none, against the creation by the legislature of every conceivable description of corporate authorities, and, when created, to endow them with all the faculties and attributes of other pre-existing corporate authorities.’ And again: ‘The constitution nowhere commits corporate objects or purposes irrevocably to authorities now existing, nor does it prohibit the committal of them to such corporate authorities as may be called into life by the same law which creates the subject, and commits it to their jurisdiction.’ Since a park district does not fall within the definition of a county, a township, a school-district, a city, a town, or a village, it is plain the park commissioners, as such merely, were not the corporate authorities of such a corporation, as under section 5, art. 9, supra, could levy a tax for corporate purposes; and the act, therefore, sought to make them corporate authorities of each of the townships united in the park district for park purposes. But it was held in Harward's Case, and in the Mayor Case, supra, that by the phrase ‘corporate authorities,’ within the meaning of section 5, art. 9, supra, must be understood those municipal officers who are either directly...