Dolese v. Pierce

16 N.E. 218, 124 Ill. 140

• Court: Illinois Supreme Court
• Decided: March 15, 1888
• Status: Published

Opinion

Mr. Justice Mulkey

delivered the opinion of the Court:

The legislature, at its last session, passed an act entitled “An act to amend sections 2, 4, 6,7,10,11 and 12, of article 3, of an act entitled ‘An act to revise the law in relation to township organization,’ approved and in force March 4, 1874.” (Laws of 1887, p. 300.) By the 12th section of the act as amended, it is provided that “the county board of each county shall have full power and jurisdiction to unite into one, two or more contiguous towns, whether incorporated under any special or general act, or organized under this act, and to disconnect territory from one of such towns and annex the same to another; but no such towns shall he united, nor shall territory be taken from one such town and at the same time annexed to another, except in the following manner.” The act then proceeds to prescribe the manner of carrying its provisions into effect, after which occurs the following proviso: “And provided, that -where said town to which such territory is annexed is wholly within the limits of an incorporated city, the limits of said city shall thereupon be extended to include the territory annexed to such town.” Pursuant to the provisions of said section, on the 3d of October, 1887, a petition, signed by the requisite number of legal voters of the town of Hyde Park, was presented to the board of commissioners of Cook county, praying that a specifically designated portion of said town be disconnected therefrom and annexed to the adjoining town of . South Chicago, both of which towns lie in the county of Cook, and the latter wholly within the corporate limits of the city of Chicago. The county authorities, under the provisions of the act, submitted the matter, as therein directed, to a vote of the people of the two towns, and upon a canvass of the votes cast, the requisite majority was found to be in favor of the proposed change in the boundaries of said towns, and it was so declared. The corporate authorities of Cook county, and of the city of Chicago, have both officially recognized the alleged new order of things, and the latter are now exercising municipal jurisdiction over that portion of the town of Hyde Park claimed, by virtue of said proceedings, to have been disconnected therefrom and made a part of the town of South Chicago. The village of Hyde Park, which was incorporated under the general law in 1872, and whose territorial limits and municipal jurisdiction, prior to said proceedings, were co-extensive with the town of Hyde Park, does not acquiesce in the action taken by the two towns and the county board, in so far as it is sought to affect its own jurisdiction and powers as an incorporated village within the alleged disconnected territory, but disregards such action altogether.

After the disconnection and annexation proceedings were consummated, which occurred on the 3d day of December, 1887, the village of Hyde Park, not regarding such action as binding upon it, ordered certain improvements to be made upon some of the streets in the alleged disconnected territory which appellants claim is still a part of said village. The contract for the work on the streets was let to John Dolese and Jason H. Shepard. The work, amounting to $600, was satisfactorily performed, the claim properly audited and certified as correct, and by order of the board of trustees, a warrant for the amount was drawn on the village treasurer, signed by the village clerk, and only wanted the signature of Daniel A. Pierce, the president of the board of trustees, to make it a valid voucher for the payment of the claim, provided the village of Hyde Park, as claimed by it, is unaffected by said annexation proceedings. The president refused to sign the voucher, on the sole ground that the streets on which the work was don,e were not within the territorial limits or jurisdiction of the village of Hyde Park, and that said village consequently had no power or authority to incur the indebtedness in question. The contractors, Dolese and Shepard, thereupon filed a petition for a mandamus, in the Superior Court of Cook county, against Pierce, to compel him to sign said warrant on the treasurer. The Superior Court, on demurrer to the petition, held it insufficient, and entered an order dismissing the same at the petitioners’ costs, from which order the present appeal is prosecuted.

After perfecting the appeal in this court, a motion was filed therein to dismiss the suit, on the ground that it had been eollusively brought, and was not being prosecuted in good faith. This motion was reserved for the hearing of the cause on its merits. We do not think that the proofs offered in support of the motion are sufficient to sustain it, and it must therefore be overruled.

The main question to be considered is the validity of that part of the act of 1887 under and by virtue of which it is claimed that the greater part of the village of Hyde Park, with all its property and improvements, has been transferred to and made a part of the city of Chicago. There are other grave and important questions presented by the record, but in the view we have taken of the one stated, it will not be necessary to notice them.

Section 13, article 4, of the present constitution, among other things, provides, that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in its title; but if any subject shall be embraced in an act, which shall not be expressed in its title, such act shall be void only as to so much thereof as shall not be so expressed.” It is earnestly insisted by appellants that the act of 1887, in so far as it attempts to deal with cities or villages by limiting or extending their territorial boundaries and jurisdiction, is obnoxious to this provision of the constitution; that the legislature, in attempting to accomplish these objects, has introduced into the act a distinct, independent subject, which is neither embraced in its title nor germane to that which is embraced in it.

After a very careful examination of the act and all the authorities cited in the briefs, besides many others not referred io by counsel, we feel constrained to hold, as we do, that the act of 1887 is, in the respect stated, unconstitutional and void. As the title of the act of 1874 is included in and constitutes a part of the title of the act of 1887, it follows that both acts relate to the same general subject of “township organization,” and consequently there can be no valid provisions in either which do not relate to that subject. But it does not follow that the subject of each act, in a constitutional sense, is necessarily co-extensive with such general subject, for restrictive terms are found in the title of the latter act which do not a]Dpear in the first, and which materially limit its scope and purpose. The act of 1874, as appears from its title, extends to a revision of the entire law then existing, relating to township organization, while that of the act of 1887 is expressly limited to the amendment of certain specified sections of the law as revised by the former act. This being so, it is clear that the scope of the act of 1887 is limited by the subject matter contained in the amended sections before amendment, for to introduce any new substantive matter not germane or pertinent to that contained in the original sections, could, in no proper sense, be regarded as an amendment of them, but would manifestly be additional, independent legislation upon a matter not embraced in the title of the act, and consequently void.

The amendment of an act in general, or of a particular section of an act, ex vi termini, implies merely a change of its provisions upon the same subject to which the act or section relates. These propositions are so elementary in their character as-to require neither argument nor citation of authority in their support.

Turning to the amended' sections, as they appear in the act of 1874, it will be found that they treat exclusively of making new towns out of old ones; re-adjusting the boundary lines of adjacent towns, by detaching territory from one and adding it to another; the uniting of two contiguous towns into one, and of the manner of accomplishing these objects, including the adjustment of the property rights and liabilities of the towns affected. There is no attempt in either of the sections to deal with cities or villages in any manner whatever. Indeed, the word “city,” or “village,” does not even so much as incidentally occur in said sections, or either of them, nor is the slightest allusion to be found in them on that subject. This being so, upon what principle or show of reason can it be contended that the provision in the act of 1887 which attempts to deal with cities and villages, is, in any sense, an amendment of the-sections named in the former act ? Or how can it be seriously-contended that such a provision relates to township organization ? And yet, both these propositions must be maintained in order to sustain the provision in question.

It is said, however, that legislation affecting the boundaries of cities and villages is germane to that affecting the boundaries of townships. But counsel have failed to tell us in what way or sense the one is germane to the other, or what meaning they attach to that term in giving a construction to the provision of the constitution in question. Literally, “germane” means “akin,” “closely allied.” It is only applicable to persons who are united to each other by the common tie of blood or marriage. When applied to inanimate things, it is, of course, used in a metaphorical sense, but still the idea of a-common tie is always present. Thus, when properly applied to a legislative provision, the common tie is found in the tendency of the provision to promote the object and purpose of the act to which it belongs. Any provision not having this tendency, which introduces new subject matter into the act, is clearly obnoxious to the ponstitutional provision in question. It is an error to suppose that two things are, in a, legal sense, germane to éach other merely because there is a resemblance between them, or because they have some characteristics common to them both. One might, with just as much reason, contend that two persons are necessarily akin because they are of the same complexion, or in other particulars alike.

Under the title of the act of 1887-, the legislature had the right to provide, as it did, for the change of township boundaries, but this right did not carry with it, as an incident, the power to change the boundaries of cities and villages, unless the change of the latter was necessary to effectuate a change of the former, or at least to promote such object, and nothing of this kind is pretended. The only thing claimed,—or which can be truthfully claimed,—is, that there is some resemblance, -or that there are common characteristics, between townships .and cities and villages. But this is equally true of all corporate bodies. While townships are regarded as municipal •corporations, in the general sense of that term, yet they stand upon a plane altogether different from that occupied by cities and villages. The latter are possessed of a much higher order •of corporate existence than the former, and differ from them in many essential particulars. They are, in law and in fact, as distinct from one another as any two artificial beings could be, whatever their supposed resemblances may be. This is ■equally so with respect to their organization and jurisdiction. In the exercise of the powers conferred upon them, they act wholly independently of each other, even where their jurisdiction extends over the same people and territory. Looking at the provisions of the amendatory act of 1887, which relate exclusively to townships, we find nothing there which was not fully provided for in the act of 1874, and consequently fail to discover the object or purpose in amending the latter act. It is only when we turn to those provisions relating to cities and villages that such object and purpose become apparent.

Looking at the act as a whole, jt is difficult to repel the conviction that it is nothing more than a method of extending, almost indefinitely, the limits of the great cities of our ‘State without consulting the people living in them, or at least but a ■small portion of them, and all this without a word in the title ■of the act to indicate such a purpose. By the proceedings under the act, if sustained, the territorial limits of the city of ■Chicago have been more than doubled by the addition of some ■thirty-seven square miles of new territory. The rich and prosperous village of Hyde Park has been practically destroyed as a separate municipality. The most valuable part of it has been transferred to and made a part of its great and populous .neighbor. But with the territory thus transferred to the city, •the act generously transfers along with it the village ordinances regulating and restraining the sale of intoxicating liquors, whereby the city has acquired the peculiar, though somewhat anomalous, distinction of having one code of ordinances for one part of its territory and a different code for the remaining, part. The act also contains elaborate provisions for the establishment and maintenance of park districts. And yet all this is done and proposed to be done under an act whose title is limited to the simple and apparently harmless purpose of amending seven sections of the township organization law, relating to the change and re-adjustment of the boundaries of townships! It is difficult to conceive of a title that more effectually concealed the real object and purpose of an act than the present one does. The constitution forbids and condemns all such devices. Whether intended to he so or not, they are-frauds upon the legislature and the people of the State. That the act of 1887, to the extent stated, is unconstitutional and. void, is conclusively shown by the following authorities: Lockport v. Gaylord, 61 Ill. 279; People v. Institution of Protestant Deaconesses, 71 id. 229; People v. Mellen, 32 id. 181; Welch v. Post, 99 id. 471; North Chicago City Railway Co. v. Lake View, 105 id. 207.

To the suggestion, that as the new order of things is an accomplished fact, great inconvenience will result from holding-the act unconstitutional, it is sufficient to say, that however great the inconvenience, it is far better that it should be borne-than to have the constitution trampled under foot, and one of its main safeguards against fraudulent legislation frittered! away. Whatever difficulties may he encountered in the readjustment of matters, are probably attributable, in a large degree, to hasty action, and that, too, in the face of litigation instituted for the purpose of testing its legality. • This court can not afford to permit itself "to be embarrassed or handicapped in the decision of a grave constitutional question by considerations of this kind. The highest duty and most sacred function of this court is to protect and enforce the constitution, regardless of all real or imaginary inconveniences that may result from doing so.

The judgment of the Superior Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Sheldon C. J., and Scott J., dissenting.