Law v. People ex rel. Huck

87 Ill. 385

• Court: Illinois Supreme Court
• Decided: September 15, 1877
• Status: Published

Opinions

Mr. Justice Walker

delivered the opinion of the Court:

It appears that the bonded indebtedness of the city of Chicago has, at all times since the adoption of our present constitution, been more than five per cent on the assessed value of the taxable property in the city, as ascertained for State and county taxation. And it further appears, that notwithstanding such bonded indebtedness, the city has each year, since 1872, if not previous to that time, issued certificates of indebtedness for temporary loans, bearing interest, intended to be paid out of the revenue levied for the current year, but not so stated in the certificates, and upon which money was loaned to and used by the city to meet its expenses.

On the 10th day of August, 1875, the city, by ordinance, in detail, levied various sums to meet the expenses of the various departments of the city government, aggregating the sum of $5,123,905.29, reciting that it was the total amount of appropriations previously made by the city to meet its expenses, in accordance with the law.

There are, amongst the items thus appropriated and levied, these: “For payment of interest on general bonded (municipal) debt of the city, and on temporary loans, in'addition to the unexpended balance of April 1, 1875, and to amounts for interest, $300,000.” Another, “ For entertaining official visitors, $2000.” “ For interest on temporary loans for this (water) fund, $40,000.” “ For interest on temporary loans for fire department, $25,000.” “ For interest on temporary loans (police department), $25,000.” These levies were made in pursuance of an ordinance adopted on the 30th of June, 1875, making the several appropriations for the purposes named.

There were outstanding certificates for temporary loans, issued after the constitution went into effect and on .the first day of April, 1875, for the sum of $3,000,000, or more. On the 31st day of December, of that year, these certificates outstanding amounted to $4,500,000. The evidence shows the item of $300,000, appropriated and levied as before stated, was for interest on the bonded debt and on temporary loans then outstanding; for interest on the bonded debt the sum of $251,310 was required; and the remainder, $48,690, was to meet the interest on temporary loans. Thus, we see, there was levied for the payment of interest on temporary loans, by that ordinance, $138,690, which we understand to be in addition to an unexpended balance of a fund previously appropriated and levied to meet interest on these temporary loans.

It is insisted, that all of the first item levied to pay interest on temporary loans is unauthorized and void, and all of the other specified items, as above, were prohibited by the constitution from being levied; that the city was not only without power, but is expressly prohibited by the constitution and charter from making these loans, as the city was indebted beyond the constitutional limit when these temporary loans were made, to pay the interest on which this tax was levied; that these debts are illegal and void, and, being so, the city had no power to levy a tax to pay interest on a void debt, and the levy can not be enforced.

The constitutional provision supposed to be violated by the issuing of these certificates for temporary loans, is the first clause of the 12th section of art. 9, and is this : “No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness.”

The language of this clause is clear, explicit and emphatic, that no city shall be allowed to become indebted, in any manner or for any purpose, beyond the prescribed limit. The city of Chicago was indebted beyond the limit when these certificates were issued, and if they, in any manner or for any purpose, create an additional indebtedness beyond that limit, they are clearly prohibited. The language prescribing the limit is so plain as to admit of no doubt, and forbids all construction, and the provision must be enforced as it is written. When the intention of the framers of the constitution is ascertained, it must, as all will concede, be held paramount to all other powers in the State. It embodies the sovereign power of the State, by virtue of which, and by which alone, all legislative, executive and judicial power is exercised. It is the source to which all the departments of government, and all of its officers must ultimately look, to authorize or sanction their official acts. It not only confers, but it limits the exercise of governmental powers to the mode prescribed.

This prohibition was manifestly intended to limit the power of the General Assembly, municipalities and all others, in the creation of indebtedness by these bodies to the amount named, and they can not, either separately or conjointly, transcend that limit. It is the command of the supreme power of the State, and it must be obeyed. Nor is there lodged, in our form of government, in any department or functionary, any authority to dispense with this or other provisions of the fundamental law, or to mitigate its requirements.

It has also been repeatedly held, and is regarded as settled doctrine, that all negative or prohibitory clauses of this character found in a constitution execute themselves, as legislative provisions, in the same or other language, prohibiting the incurring of such indebtedness, could be no more binding or forcible than the constitution itself. . But even if that were possible, the city charter has prescribed the same limit to its power to create indebtedness, and in almost the same terms of the constitution. (Rev. Stat. 1874, p. 218, sec. 62.) If the General Assembly were to impose a penalty for the violation of this prohibition, that would add nothing to the invalidity of the act. If that body were to add a sanction to this violation of the prohibition, by imposing penalties and forfeitures on those who should violate this provision, that could not lend the slightest force to the prohibition. Such an enactment might deter officers from violating this section, but it could accomplish no more.

Did these certificates, issued to procure temporary loans of money, in any manner or for any purpose, create an indebtedness? When issued, negotiated and delivered, did they purport to become debts? They have all of the essential forms of evidences of indebtedness, and that they purport to create indebtedness seems to be so plain a proposition, that we are at a loss to know how to discuss it or to render it more manifest, than by the mere statement of the proposition. We apprehend, these certificates, stating that the city owes the holder a specified sum of money, and promising to or directing the treasurer to pay it at a specified time, or otherwise, are debts, according to the definition of the word as given by any English dictionary, and we apprehend, among the people, no one, according to the general understanding of the word, would say they are not evidences of indebtedness owing by the city. And if this is the generally accepted meaning of the word, as we think all must concede, then, according to the canons of interpretation, we must presume it was used in that sense by the framers of the fundamental law, unless it is apparent, from the instrument itself, that the word was intended to be used in a different sense. No such intention appears, when the entire section and article are examined. The framers of the article could not have used the term in the sense that the sum must be due, to be indebtedness, as that is not the generally received meaning of the word, and to apply such a meaning would remove all limit on the amount of indebtedness that might be incurred, except the extent of the credit of the municipality. Such debts are usually created on time, and if such are not prohibited, then, if persons could be found to purchase such paper, the indebtedness could be increased even beyond the value of all the property in the city. Hence, such could not have been the meaning attached to the language by those who adopted the provision, and for us to apply such a strained meaning to the word, would defeat the obvious purpose of the convention and the people who adopted the constitution thus framed.

It is said, that to so hold will work great hardship and injustice on the holders of these certificates of indebtedness. The same may be frequently said of any other persons who violate the law, or act contrary to its provisions. The persons loaning this money did it in the face of this constitutional provision, and the prohibition contained in the 62d section of the charter. The law is, and all persons are presumed to know it, that municipal bodies can only exercise such powers as are conferred upon them by their charters, and all persons dealing with them must see that the body has power to perform the proposed act. Such corporations are created for governmental and not for commercial jpurposes. Hence, power to borrow money or create indebtedness is not an incident to such local governments, and the power can not be exercised unless it is conferred by their charter, and no one has the right to presume the existence of such a power, and persons proposing to loan money to these bodies must see that the power exists. If the holders of these certificates omitted to learn whether there was power, or that it was exhausted, when they loaned their money, it is their misfortune. The constitutional and charter prohibitions are so plain, that any ordinary business man could not have misunderstood their meaning, and the question whether the city had reached the limit, had only to have been asked of those negotiating the certificates, to have learned that it had. The means of acquiring information, full and complete, were at hand, and were entirely accessible to the lender, before and at the time of loaning his money, and he should have used them to protect his interest.

But, should it work hardship to individuals, that by no means warrants the violation of a plain and emphatic provision of the constitution. The liberty of the citizen, and his security in all his rights, in a large degree depend upon a rigid adherence to the provisions of the constitution and the laws, and their faithful performance. If courts, to avoid hardships, may disregard and refuse to enforce their provisions, then the security of the citizen is imperiled. Then the will, it may be the unbridled will, of the judge, would usurp the place of the constitution and the laws, and the violation of one provision is liable to speedily become a precedent for another, perhaps more flagrant, until all constitutional and legal barriers are destroyed, and none are secure in their rights. Nor are we justified in resorting to strained construction or astute interpretation, to avoid the intention of the framers of the constitution, or the statutes adopted under it, even to relieve against individual or local hardships. If unwise or hard in their operation, the power that adopted can repeal or amend, and remove the inconvenience. The power to do so has been wisely withheld from the courts, their functions only being to enforce the laws as they find them enacted.

Nor is there any force in the consideration that to enforce these provisions will occasion inconvenience to -the city officials in administering its governmental affairs. It is true, they can, as all must know, only exercise the powers conferred by the charter, in the mode prescribed therein, by their ordinances. Neither a city nor any of its officers has any inherent power in governing it, but all of their powers are delegated and limited by the charter and ordinances adopted in pursuance thereof, and to carry such delegated powers into effect; and the question with us and the city authorities is, not what would be the most suitable powers to be conferred, but what have been granted. The people, through their representatives, are the sole judges of what power shall be granted, what withheld, and what shall be expressly prohibited from being exercised by such bodies, and when their will has been legally expressed it must be obeyed by courts and municipalities, in its full spirit and meaning. The provisions of the constitution and charter must be enforced, although it may occasion inconvenience in conforming to their requirements.

The members of the convention, after using the broad and comprehensive language of the first clause of the section, seem to have supposed that it would prevent the incurring of every species of indebtedness beyond the limit, whether inchoate or completely consummated, hence they excepted from its operation the issuing of bonds that had been legally voted, but not issued, by municipal bodies, to aid in the construction of railroads. Had they not supposed they would be prohibited by that clause, why expressly relieve them from the restriction ? The vote to issue such bonds, surely, has less resemblance of indebtedness than these certificates. If indebtedness at all, they are but inchoate and incomplete, whilst these certificates have all the forms of legal indebtedness. This lends force to the conclusion, that the first clause was intended to embrace indebtedness of every description, nature and kind, and in every sense of the term, whatever the character or form by which it was evidenced, when made or issued after the limit should be reached.

The clear and unmistakable purpose of the framers of the organic law, by inserting this provision, was to effectually protect persons residing in municipalities from the abuse of their credit, and the consequent oppression of burthensome, if not ruinous, taxation. There could, we think, ha\-e been no other purpose, and this is made manifest from the experience of the past. Under the constitution of 1818 there Avas no limit on the poAver of the General Assembly to borroAV money on the credit of the State, or to authorize municipal bodies to incur indebtedness. Under that constitution, the General Assembly entered upon a gigantic system of internal improvements, paid for by money borrowed by the State; but it ended in bankrupting the State, and almost in ruin of its citizens. Whilst laboring under the disastrous effects of that policy, the convention convened that framed the constitution of 1848, and they inserted, as a part of that instrument, the 37th section of article 4, by which the power of the State to incur indebtedness was limited to $50,000, except to repel invasion, suppress insurrection or defend the State in war, or when the people should vote to create a debt.

In the judgment of that convention, the provision was necessary to protect the people from the disastrous results of reckless indebtedness. The experience of the past, with its financial disasters, and the insupportable burthens it entailed on the people, rendered such a limitation necessary. But previous to that time, the General Assembly had granted the power to municipal bodies to become indebted, with caution, and the necessity to place them under similar restrictions had not become manifest, and no provision was then inserted to limit the power of the legislature to authorize such debts to be incurred. When, however, the convention of 1870 assembled, the abuse of municipal credit, under legislative authority, had become so manifest, and the necessity for its restriction so apparent, that it was supposed to be wise to apply a restriction to such bodies as well as to the State. Hence the insertion of section 18, article 4, of our present constitution, and the section under consideration.

Ho inconvenience has been experienced by the State, under this restriction, but, on the contrary, for nearly a third of a century, Ave haAre had an almost unprecedented career of prosperity. We have grown vastly in population, in wealth and material greatness. The State has, under the restriction, paid a vast debt, Avith its interest, and paid all of its expenses, and no Aralid reason is perceived Avhy the great municipality of Chicago, under the same prudence, economy and financial ability, should not be able to manage its financial affairs Avith like results. It has the same revenue system as the State. Its taxes are assessed, levied and collected in the same manner and at the same time. Nor are we aware that any county or other municipality in the State has suffered any embarrassment by reason of the same restriction on their credit. But if the revenue system is defective, or needs amendment, the wisdom of the General Assembly will, no doubt, apply the corrective. Seeing the salutary effects of the restriction, as applied to the State, Ave must conclude it will, if strictly adhered to, produce equally beneficial results in counties, cities and other municipal corporations, and such Avas, no doubt, the belief of the convention.

These certificates, then, being evidences of indebtedness, and the city, at the time and before they were issued, having reached the limit of its power to incur debts, in any manner or for any purpose, they were not only unauthorized, but were prohibited by both the constitution and the charter, and it follows the city had no power to make any appropriation or levy a tax to pay interest on them. The certificates haAdng been issued and.the debt contracted in direct violation of Iuav, they were void, and the debt being Amid, the interest must be equally void, and the-levy of the tax to pay it is as effectually prohibited as to incur or pay the principal debt. The interest is as much a debt as the principal on Avhich it accrues, and can be no more laAvful or binding. It then folloAVS that the appropriation, and leAry of this tax to pay interest on these temporary loans, were void, and have no legal force.

But it is claimed that this is but' anticipating the revenue already levied and to be collected, and these loans are, therefore, not indebtedness. They purport to bind the city,.and if it Avas not for the prohibition, the city could be sued on them, and a recovery had, because they are debts. . They are not draAvn, so far as Ave can see, against the revenue or tax levied for any particular year, nor do they state that they can be-paid only out of that particular1 tax or fund. When these debts Avere contracted, the city officials, no doubt, expected them to be paid out of the fund levied for the purpose, and if not, then out of some other fund, either then or afterwards to be levied and collected, and the lender expected to receive his money, without regard to the source from whence it came.

This is not an anticipation of revenue provided; it is issuing certificates of indebtedness, attempting to bind the city for their payment.

In the case of The City of Springfield v. Edwards, 84 Ill. 626, we pointed out the manner in which revenue already levied and to be collected might be anticipated without the city becoming indebted, or violating the constitutional or statutory prohibition, and the questions presented by this record are essentially the same as in that, and must be governed by that case. In that case it was held that the tax upon which the warrant is drawn must at the time be actually levied, and the delivery of the warrant on the treasury must have the legal effect and operate as a contract between the corporation and the person receiving the warrant, that the city shall thereby incur no liability whatever. In such a case there is no debt incurred, because the warrant on the treasurer is received for the work done or the articles furnished. The one thing is given and received for the other, and the transaction closed on the part of the city, leaving no future obligation, either absolute or contingent, upon it, whereby its debts are increased. “ But until a tax is levied, there is nothing in existence to be exchanged; and an obligation to levy a tax in the future for the benefit of a particular individual, necessarily implies the existence of a present debt in favor of the individual, against the corporation, which he is lawfully entitled to have paid by the levy. If the making of the appropriation and issuing and accepting a warrant for its payment does not have the effect of relieving the corporation of all liability, or, in other words, if it incurs any liability thereby, it must, manifestly, incur, either absolutely or contingently, a debt. Where a warrant or order, payable from a specific appropriation of a tax levied but not yet collected, is accepted in exchange for services rendered or to be rendered, or for materials furnished or to be furnished, so that there is, in fact, the exchange of one thing for another, the duty remains for the proper officers to collect and pay over the tax in accordance with the appropriation—but obviously, for any failure in that regard, the remedy must be against the officers, and not against the corporation, for, otherwise, a contingent debt would in this way be incurred by the corporation.”

The theory is, that a corporation which has reached the constitutional limit of its power to create indebtedness, may, when a tax is levied, but not collected, draw against the fund thus levied and provided, although not in the treasury, and thus appropriate and virtually assign the amount specified in the warrant on the treasury, to the person to whom it is issued and delivered, and that amount, being assigned or set apart to him, when collected he has the right to receive, and it becomes the duty of the officers to collect and pay it to him; and failing in their duty, he would have an action against them for its recovery. But with a corporation thus situated, the legal effect of the issuing and receiving of the warrant is, that the person receiving an assignment or appropriation of so much of the specific tax already levied, and against which the warrant is drawn, by receiving it, discharges the corporation from all liability on account of the services or articles for which it is drawn, and agrees to look to the tax thus levied and appropriated, and to the officers, for his pay, and he thereby discharges the corporation from any and every kind of liability therefor. In such a case the warrant is given and received in full satisfaction for the services rendered or the material furnished.

Where a corporation is thus situated, and it hires labor or purchases material, as it can incur no debt, it may, in thus hiring or purchasing, agree to thus transfer so much of the tax then levied as will pay for the same, to the person performing labor or furnishing material. And in case a corporation was so situated, and the agreement was not so expressed in terms, the law would imply such an agreement, and not that the corporation, having no power to create a debt, could be sued and a recovery had on such a contract.

Officers rendering services, and persons furnishing articles of property to the State, know that it can not be sued and a recovery had, and yet the State experiences no difficulty in procuring all of either- that is desired. When either are furnished, on adjusting the account, the Auditor of Public Accounts draws his warrant on the Treasurer for its payment, and if the taxes have been collected, and the money is in the treasury belonging to the fund against which the warrant is drawn, the Treasurer pays it, but if not, the person owning the warrant holds it until the funds are collected and are in the treasury for its payment. Nor do these warrants draw interest, and yet, so far as our knowledge extends, most persons are willing, if not anxious, to serve the State, or furnish it with articles it may need; and this, too, notwithstanding the State is prohibited from borrowing but a limited sum of money, and incurs no legal liability by drawing such warrants. Then why may not the great, populous and wealthy city of Chicago, containing, as it does, great financial ability, with the same laws for collecting revenue, produce the same results ? We are unwilling to believe it can not be done.

If, under the language of this provision of the constitution and the charter, it could be possible for a city, after it has reached the limit, to create' a further debt, still it is not shown that these certificates are of that character. And when it is shown that they are beyond the limit, we must presume, from that fact, that they are prohibited by these provisions. The prescribed limit is shown to have been more than reached before they were issued, and the transaction, on its face, falls within the prohibition, and in the absence of evidence that they grew out of a transaction sanctioning their issue, if such can exist, they must be held' void. To hold otherwise would place the burthen of proving that unlawful which both the constitution and charter have expressly prohibited, upon the person objecting to their validity. Being prohibited in general terms, if they fall within any exception, it is for the holder to show it, and not the tax-payer. We have, in the light of the able and exhaustive arguments filed in this case, reviewed the case of Springfield v. Edwards, supra, but are unable to change or modify the views there expressed. We are satisfied we announced the rule as it is imperatively required by both the language and spirit of the constitution and the charter, and we must adhere to that decision.

It is not claimed that the general law, under which the city is acting, confers power to levy a tax to provide a fund to entertain official visitors of the city, but it is contended that the amendment to the former charter, approved the 9th of March, 1867, (Private Laws, vol. 1, p. 771,) does, in terms, confer the power; and inasmuch as that provision is not repugnant to the present charter, by force of the sixth section of the general law the power may be lawfully exercised. That section provides that all laws and parts of laws not inconsistent with the general law, shall continue in force and be applicable to any city or village adopting the general law, the same as though the change of organization had not taken place. Is, then, that amendment continued in force ? We, from the language employed, can only suppose that all laws and parts of laws conferring ordinary corporate powers were intended to be preserved, and not such as were unusual or extra corporate powers. This power, it is believed, is seldom conferred on municipalities, and, in the very nature of things, can not be held a necessary or proper corporate power. We are at a loss to perceive in what manner its exercise can be conducive to the well being of the inhabitants of the city, or it could in the slightest degree advance their prosperity, or protect them in any of their rights, or promote and advance morality or good order.

The 62d section of the general law is full and explicit in conferring powers on the city, and this is not of the number. And even if the sixth section is not in conflict with the constitution, we must hold that it only intended to keep in force laws conferring the usual and necessary corporate powers; and this amendment is not of that character. We are, therefore, of opinion the amendment of the previous charter is inconsistent with the present charter, and the tax was not legally levied to provide this fund.

It is urged, against the validity of the entire city tax, that the ordinance making the various appropriations for the fiscal year is void, because in its title is used the word “ common,” instead of the word “city” council, as required by the present charter. At the time this ordinance was adopted, no election had been held after the adoption of the present charter, and the councilmen elected under the old charter were still performing the duties devolved on the legislative department of the city government, and it may be that body was still the common council, until new aldermen were elected, and if so, the title was strictly accurate. But be that as it may, the two terms are so nearly precisely the same in meaning, that we regard it immaterial which term was used in such an ordinance. Even if the word “city” should, technically, have been used, the adoption of the words “common council” would not be ground for holding the ordinance void.

The other questions presented by the record and not here considered are fully discussed by my brother Scott, and I therefore refrain from their discussion.

As to all but the city taxes, we perceive no error in the judgment, and it is to that extent affirmed. But for the errors indicated in the city tax, the judgment as to them is reversed, and the cause remanded, that the court below may render judgment for the amount of that tax legally levied, after deducting the illegal portions from the gross sums appearing against the several tracts or lots of ground.

Judgment affirmed in part and reversed in part.

Mr. Justice Scott :

Involved in this litigation are State and county taxes, city taxes, town and park taxes, and special taxes imposed for local improvements, and levied by virtue of different corporate authorities, under the sanction of numerous acts of the General Assembly. The discussion has assumed a wide range, and embraces a great number of matters which, it is insisted, affect fatally the validity of the taxes for which judgment is sought against lands in which contestants allege they had an interest, some going to the whole tax and others only to parts or particular taxes, but it is not deemed necessary to consider any except such as are relied upon in argument.

An objection urged is, the valuation upon which the taxes were extended was void, because it was the result of the illegal action of the State Board of Equalization, and being void, under the doctrine laid down in Town of Lebanon v. Ohio and Mississippi Railway Co. 77 Ill. 539, the taxes extended thereon are also void. That which is said to render the action of the State board illegal is, they first ascertained that all property in the State, both real and personal, had been assessed for the year the taxes were extended at fifty per cent of its cash value, and then proceeded to assess for taxation property of railroad and other private corporations, at the same proportion of its cash value.

Under our constitution, all needful revenue shall be levied by a tax on the valuation, so that every person or corporation shall pay a tax in proportion to his or its property. Whatever rules may be adopted to carry out this provision of the constitution, should be with a view to produce that result. Accordingly, it is made the duty of assessors, and the State Board of Equalization, so far as it is charged .with that duty, to assess all personal property at its “ fair cash value,” and all real estate at a “ price it would bring at a fair, voluntary sale.” However desirable it may be that all assessments should be made on that basis, it is known such a result has never yet been reached. When the State board came together, their first duty was, to ascertain, as nearly as practicable, on what basis the valuations of both real and personal property had been made. That was indispensable to any just equalization of values. They found all valuations of real and personal property had, in fact, been made on a basis of fifty per cent of its cash value, and expressed their finding in a resolution adopted. Had the board resolved all property in the State had been assessed at its fair cash value by the local officers, for taxation, it would not have changed the actual fact with which the board had to deal. Common honesty required the board to declare the exact truth, as we have no doubt was done, from the best information attainable. It was a fact within their jurisdiction to find, and if fairly done, and from the most reliable information in their possession, we are not aware such a finding can be reviewed by any court or by any tribunal.

It will be conceded the statute makes it the duty of the State board to assess corporate property at its fair cash value. Previous decisions of this court so declare the rule. Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 561; Chicago, Burlington and Quincy Railroad Co. v. Cole, 75 Ill. 591. No omission of that duty is shown. As we understand the record, the State board did estimate the fair cash value of all that class of property Avhich the Iuav made it their duty to do, and their action in that respect is not called into question. As we have seen, all other property in the State had been assessed at one-half its cash value. Under the law, the State board had no poAver to increase the aggregate valuation beyond one per cent on such aggregate assessed valuation. It became a question, what Avas to be done ? Whatever may be the statutory injunction as to making valuations of property for taxation, the controlling authority as contained in the constitution is, it shall be so valued that every person and corporation shall pay a tax in proportion to his or its property. Under the circumstances, had the State board set doAvn the property of corporations at its fair cash A7alue, as ascertained for the purpose of taxation, then such property would have been subjected to an increased taxation in proportion to property of other owners, which the constitution positively inhibits. Observing the constitutional injunction, rather than a literal compliance with the statute, the State board equalized the valuations of that class of property at the same ratio adopted by local officers in fixing valuations of other property in their several localities. Any other rule would have been most unjust as well as in contravention of the constitution. Under the rule adopted, every person and corporation is made to pay a tax in proportion to the value of his or its property. It was the only rule that could have been adopted to secure anything like uniformity in valuations for taxation. A strict observance of the statute, in that respect, would have worked manifest injustice, as well as a plain violation of that constitutional requirement, that the burden of taxation should be made to bear equally upon all property, whether owned by private persons or by corporations. That which the constitution imposed was the higher duty, and the State board was not at liberty to disregard its provisions. This view of the law is sanctioned in Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229.

It was obligatory upon the State board to equalize valuations of property under the law, as the same had been certified by the local officers making the same, and it is difficult to appreciate the argument, the State board had no authority to equalize the valuations of property on the basis of fifty per cent of its cash value. What possible difference could it make whether the State board regarded the valuations of property made by local assessors as having been made upon a basis of fifty per cent, or upon its fair cash value ? In either case it was the duty of the State board to equalize the valuations as they came before them. Great difficulty has always been experienced in arriving at just valuations of property for taxation, and, as yet, no great accuracy has ever been attained; but it has never been understood, every inequality in that respect would vitiate the whole assessment. Should entire uniformity and accuracy in valuations of property for revenue purposes be exacted, it would be impossible to collect either State or municipal taxes. Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229; Chicago and Northwestern Railway Co. v. Boone County, 44 Ill. 240.

Among the taxes contested is one levied upon property in the city of Chicago, to meet an appropriation made by ordinance to pay interest on what are termed “temporary loans,” and that, it is said, is illegal. It may be assumed, as proven, the appropriations made were for the payment of interest on “temporary loans” for the fiscal year from April 1, 1875, to April 1, 1876, and being the fiscal year for which the taxes contested were levied. The controller is positive in his statement, the appropriation ordinance contains no appropriation for interest on “temporary loans” prior to that date. Elaborate arguments have been made on this branch of the case, and the difficult questions raised have been the subject of much discussion and reflection on the part of the court.

The restriction upon the power of municipalities to contract indebtedness is contained in the first clause of section 12, article 9, of the constitution: “No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness.” Prior to the adoption of the present constitution, the funded debt of the city of Chicago exceeded the limitation fixed by that instrument, and has not since been reduced. There is, also, what is called a “ floating indebtedness,” of many thous- and dollars, in addition to the bonded indebtedness, much of which, if not all, has been contracted since the adoption of the constitution; but the amount of that indebtedness, and when contracted, are not, in my view, matters that affect the decision of the questions made.

The direct question comes up for decision, can a municipal corporation, the indebtedness of which exceeds the constitutional limitation, anticipate the taxes levied for any current year, so as to make them available for that fiscal year? Limitations imposed by the constitution, in such matters as we are considering, should be construed with reference to existing facts, and with a view to the practical working of that instrument. Such literal construction should not be adopted as would defeat the object to be attained. It was, no doubt, the purpose in framing the constitution to afford protection to municipal corporations. They constitute efficient aid to government, that can not well be dispensed with. Self-preservation is a right inherent in everything capable of exercising it, and may be said to pertain to Artificial as well as natural persons. Unless prohibited by positive law, a municipal corporation may do all things, fairly within the scope of powers conferred, to accomplish the purposes for which it was created. Only general powers can be conferred upon municipal corporations, and from that source must be inferred all necessary power to render practicable that which is conferred by the general terms employed. Express authority is given to do many things for the protection of the life and property of the citizen, and with that grant of power must necessarily be connected authority to provide for the expenses attendant upon the maintenance of municipal government; otherwise, the grant of power, however comprehensive, would be value-' less and unavailing. The taxes levied for any year should be for the expenses of that fiscal year. Unless such taxes can be anticipated in some mode, it is not practicable to make them available for that purpose. It is a matter of which courts must take judicial notice, that taxes levied for any one year are seldom, if ever, all collected within that fiscal year. Accordingly, when appropriations for ordinary expenses have been made, and taxes levied to meet the same, the revenue so appropriated, in legal contemplation, is regarded as already in the treasury of the corporation imposing such taxes. The principle is, that when taxes have been levied to meet lawful appropriations, the corporate authorities may proceed with the expenditure of such funds for the purposes for which the levies were made, in anticipation of their collection. This view of the law has been distinctly recognized by this court in Newell’s case, 80 Ill. 592. Other courts, where the constitutions of the States contain provisions similar, if not identical with our own, as to limitations upon contracting municipal indebtedness, have reached the same conclusions. Grant v. City of Davenport, 36 Iowa, 396; People v. Pacheco, 27 Cal. 175; State v. Maberry, 7 Ohio State R. 522; Reynolds v. Mayor, 13 La. Ann. 426. Appropriations for ordinary municipal expenses may be made in anticipation of taxes levied in any year, and contracts payable out of such appropriations when the revenue shall be collected, is not regarded, in any just sense, as contracting indebtedness by the corporation. The revenue has already been provided and set apart for a specific purpose, and, in contemplation of law, it is in the treasury of the corporation. It is obvious, therefore, if the appropriations do not exceed the taxes levied for payment of the same, no additional corporate indebtedness is created.

Assuming, as I do, the proposition, a municipal corporation may appropriate its revenues in anticipation of their receipt, as effectually as when actually in its treasury, may be maintained both on principle and authority, the question recurs, what is the most feasible mode of anticipating such taxes?— and no better plan suggests itself than by “ temporary loans.” It has for its support considerations of convenience and economy. It is not practicable to agree with persons in the service of the corporation, in the various departments, to wait for their wages until the revenues for the year in which the services were rendered have been collected. That might, in many instances, be beyond the term of their employment. An insuperable objection to that mode of defraying all ordinary expenses for any year out of the revenue of that year, is, the taxes so levied are not all collected within the fiscal year in which the services were rendered. No prudent man would undertake to manage his private affairs in that way. Implied in the power to make such “ temporary loans ” in anticipation of taxes levied, is the authority to pay interest on the same as an incident to the principal thing done. One is as lawful as the other. City of Galena v. Corwith, 48 Ill. 423.

But the question of most seeming difficulty is, whether “temporary loans,” effected with a view to anticipate the revenue of any fiscal year, is contracting municipal indebtedness, in the sense that term is used in the constitution. I am of opinion it is not. Both principal and interest of such “ temporary loans” are payable out of the revenues for the fiscal year for which they were made. It can make no possible difference, in a legal point of view, whether the revenues for any fiscal year are anticipated in this mode to raise funds for immediate use with which to defray ordinary expenses for which appropriations have been made, or whether it is done by contracts with persons in the service of the corporation to wait for their wages until the revenues of that particular year, as a matter of fact, come into the treasury. The former would be a practical and economical way of anticipating such revenues, while the latter would involve the necessity of paying increased wages for everything done for the corporation, which would be equivalent to a discount of the usual rate of interest for that period, if not greatly in excess of it. The cases cited, supra, sustain the view of the law we have taken. The sanie cases were cited by this court in The City of Springfield v. Edwards, 84 Ill. 626, and the rule recognized in them was assented to by the inembers of the court, concurring in that opinion, with two qualifications: first, the tax appropriated must, at the time, be actually levied; and second, by the legal effect of the contract between the corporation and the individual, made- at the time of the appropriation, and issuing and accepting an order on the treasury for its payment when collected, must operate to prevent any liability on the contract against the corporation. It was thez’e said, the principle is, there is in such cases no debt, because one thing is simply given and accepted in exchange for another. That is the precise case presented by this record. All “ temporary loans ” for which appropriations for the payment of interest were made, were obtained after the 1st day of April, 1875, and, so far as we can know, both principal and interest were specifically made payable out of the revenue of that fiscal year. No proof is made to the contrary, and no presumptions will be indulged they will not be paid in that way. Sufficient appropriations were made for that distinct purpose, and, in the absence of proof, it must be understood that which the law requires the municipal officers to do will be done.

Whether there are “ temporary loans,” that were contracted in previous years, that constitute municipal indebtedness, and therefore invalid, because inhibited by the constitution, is a question not before us, nor does it in any way affect the present decision, and for that reason I forbear to remark upon it.

The point is made, the Revenue act, in that provision which requires the State Board of Equalization to “ value railroad track” azzd divide the aggregate between the several counties and other municipalities, in proportion to the length situated therein, violates the rizle of uniforznity which the constitution requires shall be observed in valuations of property for taxation. The reason assigned is, it deprives counties, towns and cities of the value of this class of property situated within their limits as a basis for local taxation. As the taxes in this case were levied on the basis indicated, it is said that all taxes, except State taxes, are alike unequal and void, because the law fixes a basis of assessment forbidden by the constitution.

The fallacy of this argument is, it rejects the definition given by this court in Porter v. Rockford, Rook Island and St. Louis Railroad Co. 76 Ill. 561, of this class of property, that a railroad and its equipments “ constitute a single, entire property.” As was said in that case, “the cost of construction in any particular town or county affords no criterion o'f the value of that portion of the road, for every mile of the road is equally indispensable to its existence as a whole, and contributes proportionally to its principal earnings.” It may be that in centres of traffic a limited number of feet, or rods, of a railroad may earn, by way of rent from other companies, a large percentage on its cost, exceeding the proportion earned by the balance of the road in its ordinary and legitimate business; but it is apprehended such increased earnings are due to the fact such companies have extended lines that bring the products and trade of a wide expanse of country .over them, and but for such extended lines crowding business into great centres, no such rents could be realized. It is in that way every mile of the road, whether in one county or another, without reference to its actual cost in any locality,—whether laid with steel or iron rails, or over land worth much or little, measured by acreage,—“ contributes proportionally to its principal earnings.” What may be the relative value of lands in the several counties over which the track is laid, is not a pertinent inquiry in assessing the value of the track as such. Its use by the railroad company is exclusive for a single, definite purpose, and it is worth no more in one locality than another for roadbed. Keeping in view the fact a railroad and its equipments must be regarded for most, if not all, purposes “as a unit,” or as constituting a “ single, entire property,” the mode prescribed in the statute for assessing it for taxation is one that best observes that rule of uniformity which the constitution enjoins.

The State Railroad Tax Cases, 2 Otto, 575, arose under the laws of Illinois, in which the precise point was made as in that case, that “the railroad track, capital stock and franchise is not assessed in each county where it lies, according to its value there, but according to an aggregate value of the whole, in which the county, city and town collects taxes according to the length of the track within its limits,” and, in a well reasoned opinion, this provision of our Revenue act was sustained.

Among appropriations made was one making provision for the expenses of the offices of assessor and tax commissioner within the city of Chicago, and objection is urged against the tax levied to pay the same, on the ground there could be no such officers in that city under the General Incorporation act. The city became incorporated, under the general law, April 23, 1875, and on the 3d day of May, 1875, the city council, by ordinance, declared all municipal officers in office at that date should continue in office, and exercise the same powers and perform the same duties as before, until their successors should be elected and qualified, and until otherwise provided by law or ordinance. It was declared in The People v. Brown, 83 Ill. 95, the organization of a city under the General Incorporation act determines the' tenure of all offices under its special charter, except such as are within the saving clause of that act. The saving clause, however, includes no such officers as assessor and tax commissioner; but under the general law the city council had the power, in its discretion, from time to time, by ordinance passed by a vote of two-thirds of all the aldermen elected, to provide for the election by the legal voters of the city, or the appointment by the mayor, with the approval of the city council, of certain enumerated officers, and “ such other officers as may by said council be deemed necessary or expedient.” Under the comprehensive power conferred, no reason is perceived why the city council could not, in its discretion, subject to constitutional restrictions, create any office it deemed necessary to the efficient administration of the city government established, and provide for filling such offices by election or appointment. That discretion existed, and, in the absence of evidence to the contrary, the presumption ought to be indulged, the city council had, in some lawful way, exercised the discretionary power with which it is clothed, in the creation of such offices, or else it would not have been guilty of the extreme folly of making appropriations for paying the expenses of such offices when none existed. In a collateral proceeding, there is no warrant for declaring the incumbents were not rightfully exercising the functions of such offices, and entitled to receive the emoluments connected therewith.

A sum insignificant in amount was also appropriated to pay expenses of entertaining official visitors, and the point is pressed on the attention of the court, but not with much earnestness, that that is an illegal purpose, and hence the tax levied to pay the same is void. Ho warrant is found in the General Incorporation act for any such appropriations, but the special charter under which the city had been incorporated contained a provision expressly authorizing expenditures for entertainment of official visitors. By a provision in the general law, cities adopting it may still exercise such powers as were conferred by the special charters under which they had previously been incorporated as are not inconsistent with the General Incorporation act. That was so declared in The People v. Brown, cited supra. Ho conflict exists between that provision of the special charter authorizing expenditures for entertaining official visitors, and the general law, and as to the propriety of such appropriations, that is with the city council.

It is suggested the enacting clause of the appropriation ordinance of June 30, 1875, is not in conformity with the statute, and for that reason is void. The alleged error consists in the use of the word “common,” instead of “city council.” It admits of some discussion which was the most appropriate term to use; still, the error insisted upon, if error at all, is not of sufficient gravity to vitiate an ordinance in all other respects lawfully adopted. “Common council” and “city council,” -if not equivalent expressions, the shade of difference in meaning is so slight as to be scarcely appreciable. Both expressions are used as convertible terms to represent the legislative department of a city government.

It is shown the appropriation ordinance was published in the corporation newspaper within a few days after its passage, and afterwards in a German newspaper, and in pamphlet form, with other proceedings of the city council. That was a sufficient publication, and the objection it was not published as an ordinance seems hypercritical. What possible difference can it make -whether it was published separately or with other proceedings of the corporation ? In either case it would be published as an ordinance, and that is sufficient.

Although it is insisted in argument a part of the town taxes included in the judgment rendered against the property of contestants are illegal, we do not find that any specific objection was relied on in the court below. There is the general objection in the 13th specification, the “ alleged State, county, town, village, city, and other taxes, and each of them, are and is invalid and unauthorized, and if not in whole, then in part.” But wherein the town taxes, or any part of them, are invalid, is not set forth, except in a general way, that the assessments and valuations upon which the taxes purport to rest for their validity, are “ illegal, unauthorized, and void.”

Our views on the general objection taken have been expressed in considering other points made in the argument, and it is a matter of grave doubt whether counsel ought to be permitted, in this court, to insist upon specific objections not shown by the record to have been made in the court below. Such a rule might lead to mischievous results to the public interest, and induce endless and expensive litigation. Where any specific or merely formal defects exist, it is possible they might be obviated by proof or by amendments to the record, under our statute, which allows liberal amendments in tax proceedings. Such amendments as could be made in personal actions are allowable, and any omission or defective act of any officer connected with the assessment or levying of such taxes, in the discretion of the court, may be corrected, supplied and made to conform to law, either by the court or by the person in the presence of the court from whose neglect or default the same was occasioned. Hence the necessity that all specific as well as general objections should be distinctly made in the court below, that an opportunity might be afforded the State to make the proceedings conform to law, if it were possible to do so by amendments.

But waiving this view, we may, however, consider such objections made in argument if maintainable as would affect substantially the justness of the taxes contested.

As we understand counsel, the objections insisted upon are only to a part of the town taxes. The point is made that, under the 4th section of article 4, Township Organization act, the electors in the towns of ¡North, South and West Chicago had no power to vote town taxes. That may be, but we do not understand the taxes litigated were so levied. It was shown the county board of Cook county ascertained and allowed, and the county clerk extended, the taxes required to be raised in these several towns, and that'was regular, under section 7, article 13, of the Township Organization act.

It is said the “ park taxes ” for West Chicago were extended on the assessments as returned by the town assessor, except, as to railroad property, and that, it is contended, was irregular. It is claimed these particular taxes should have been extended in conformity with sections 126, 127, 128 of the ¡Revenue act. That, we think, is a misapprehension of the law. This is a local tax, and, under the second section of the act in relation to “ parks and boulevards,” “ park taxes ” are to be upon “ real and personal property within such town according to the assessment roll as returned for the purposes of State and county taxation next preceding the estimate ” authorized to be made. That provision of the Revenue law that requires certain taxes specified shall be extended upon valuations produced by the equalizations and assessments by the State Board of Equalization, does not include within it taxes for “park purposes,” such as are included in this judgment. Besides, the objection insisted upon in no manner affects the justness of the taxes levied. The property subject to taxation bears the same relative proportion of the burden imposed' that it would have done had it been extended on the equalized valuation as made by the State board. But it was extended in accordance with the law which authorized the imposition of such taxes, and that was the only regular mode that could be adopted.

The case in hand presents some questions about which I am not entirely free from doubt, and impresses the mind with the exceeding great difficulty experienced in making assessments and collecting revenues where so many kinds of taxes are involved under a complicated revenue system. In the same proceeding may be involved State and county taxes, municipal taxes, park taxes, special assessments and special taxes for local improvements, and assessed by different corporate bodies untier distinct enabling acts. That some slight errors may intervene, is to be expected, and I am more than ever impressed with the reasonableness of the rule declared in Purrington v. The People, 79 Ill. 11, that merely formal objections to municipal and other taxes should not be entertained when the irregularities complained of do not affect unjustly the interests of the citizen. Every one ought to be willing to bear his just proportion of the burden of taxation. A tax is treated by writers on political economy as a “just debt,” due from the citizen to the State, for protection to life and property, that he is under both moral and legal obligations to discharge, and the withholding of which is deemed a public wrong. It is said the obligation proceeds from the highest considerations that concern the public welfare. The captious objector is one who is unwilling to pay a due proportion of the expenses of government that secures that protection to his property that gives it all the value it has, and without which he could not enjoy it. Without such protection, it would be a prey to every lawless depredator who might possess sufficient physical power to appropriate it to his individual use.

Our law is, that all taxes shall be levied by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or its property, and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same. But exact uniformity, either in respect to persons or property, is not attainable. An approximation to such a result is all that can be expected. All property, were it possible, should be made to bear its just burden of taxation, but mere irregularities that may intervene, either in making valuations or in levying taxes, will not vitiate the tax, unless where it is apparent such irregularities affect substantially the justness of the tax levied, or debars the citizen of some important right secured by law.

It is a cardinal principle, every tax should be so contrived as to take from the people as little as possible over what it brings to the treasury of the body imposing it. It ought not to be wasted upon unnecessary officers, nor frittered away by forfeitures suffered to the State—a practice now much resorted to, as it seems to be favored by the existing Revenue law. In this way a tax is sometimes rendered more burdensome to the people than beneficial to the State. Some system ought to be adopted that would induce prompt payment of all taxes imposed. Such a result would lessen, in a great degree, the aggregate amount of taxes required to be levied. Uncertainty in taxation encourages persons who would pay no taxes whatever unless the law seized their property and appropriated it to that purpose. Deficiencies arising from non-payments must be made up in some way from other tax-payers, and their burdens in this respect are unjustly increased. Uniformity in payment of taxes is quite as indispensable as uniformity in levying taxes, to effect the purpose of the constitution, that every person or corporation shall be compelled to pay a tax in proportion to the value of his or its property.

The present is a time of unusual financial embarrassment, and even needful tax becomes a burden on the owner of property, but there exists no authority in courts to relax the rules of law on that account. A precedent set now in that respect would be productive of evil results when this great depression is removed, as it must needs soon be, and would thereafter embarrass the collections of revenues indispensable to the government of a prosperous people. Great care should be taken to levy no more tax than is needful, and prompt payment should be enforced.

There is and can be no just ground for complaint that the property of contestants in this case has been made to bear more than its just burden of taxation, and in my opinion the judgment ought to be affirmed as to all the taxes litigated.

All the members of the court concur in this opinion except as to what is said as to the validity of taxes levied by the city of Chicago to pay interest on temporary loans, and also as to the taxes levied by the city to pay expenses for entertaining official-visitors. The views of the majority, of .the, court upon those questions are expressed in the opinion of the court in this case delivered by Mr. Justice Walker.