City of Chicago v. Brede , 218 Ill. 528 ( 1905 )

Mr. Justice Wilkin

delivered the opinion of the court:

The one question for determination is, whether the city of Chicago possesses the power to pay or purchase improvement bonds, coupons and vouchers issued in payment of local improvements constructed by special assessment, where the ordinance authorizing the local improvement provides that it shall be paid for by special assessment.

It is insisted by appellants that pursuant to section 9 of article 9 of the constitution of 1870 the legislature passed the Local Improvement act of 1897, section 1 of which authorizes cities, villages and towns to make local improvements by special assessment, special taxation, general taxation or otherwise; that under this section, and the construction placed upon it by this court, the city possesses the discretionary power to prescribe in the original ordinance that the improvement shall be paid for entirely out of the general fund or entirely by special assessment, or partly by special assessment and partly out of the general fund, and that after naming a mode of payment in the ordinance the city is not precluded thereafter from paying for the improvement in any manner than the one prescribed, but may pass another ordinance of equal dignity and standing with the original and prescribe therein another method of payment.

Section 9 of article 9 of the constitution of 1870 empowers the legislature to vest cities, villages and towns with the right to make local improvements by special assessment or by special taxation of contiguous property, or otherwise. In the case of Wilson v. Board of Trustees, 133 Ill. 443, we held that this section was adopted for the purpose of removing restrictions which had been placed upon the legislature by the constitution of 1848 and to authorize the making of local improvements by the levy of assessments on contiguous property according to frontage, and that the words “or otherwise” were used in the section for the purpose of excluding the possibility of misapprehension that because only cities, towns and villages could be authorized to make local improvements by special assessment or special taxation, they could not be authorized to make them by general taxation.

Prior to 1897, section 1 of the Local Improvement act passed under the above section of the constitution vested cities with authority to make local improvements by special assessment or by special taxation, or both, or by general taxation, or otherwise, as might be prescribed by ordinance. (Hurd’s Stat. 1893, chap. 24, sec. 116, p. 268.) In the case of Kuehner v. City of Freeport, 143 Ill. 92, we held that the language of the above section was not directed to the mode of making a single improvement, but to the making of improvements in the plural, and that its purpose was to vest in the corporate authorities power to make improvements both by special assessment and special taxation, but that in case of a single improvement the city or village must decide by ordinance which of the modes it would pursue, and that the words “or both” did not authorize a city or village to combine the two modes in a single assessment, but that they might combine general taxation with special assessment or with special taxation in the same proceeding.

On July i, 1897, an amendment to section 1 of the Local Improvement act went into effect, conferring power on cities and villages to make local improvements by special assessment or special taxation of contiguous property, or by general taxation, or otherwise, as the city or village by ordinance might prescribe. This act was substantially the same as the one in effect prior to July 1, 1897, except that the words “or both” were omitted. Thus it will be seen that the omission of these words limited the application of the statute, and in no way could it be implied under this provision that an assessment might be made by special taxation and special assessment in the same ordinance. Outside of the sections above referred to, no provision of the statute has been called to our attention authorizing the two systems to be adopted in the same ordinance.

In the Kuehner case, supra, we held that the provision of section 9 of article 9 of the constitution, being an exception to the general rule and policy of the State and the dominant principle of the constitution, should not be extended beyond the clear import of the language employed. That rule may also apply to the statutes passed under that section of the constitution. Those statutes should receive no more liberal interpretation than the provisions of the constitution, upon which they are based.

The appellants contend that, notwithstanding the above provision, they may by ordinance prescribe that a certain local improvement may be paid for by special assessment, and then afterwards pay a portion of the same out of a general fund raised by general taxation. This method might open a way to great injustice. If the special assessment had been levied and paid by a portion of the property owners, and the city were permitted to purchase outstanding improvement bonds and afterwards a portion of those bonds should not be paid, some method would have to be devised which would equalize the payments so that the tax would be just and uniform, otherwise one property .owner would have to pay his full share of the assessment as levied against him, while another might be required to pay only a part or escape entirely. The city council, by its original ordinance, may provide that an improvement is to be paid for in part out of the general fund and in part by special taxation, but after that ordinance has been passed and the assessment levied and the work completed and the bonds issued, there is no statutory provision which has been called to our attention authorizing the city council to change the method' of payment, and we do not think the city council-has any discretion outside of express statutory provisions.

It is next contended that the . city has the power to purchase special assessment or improvement bonds, coupons and vouchers out of moneys derived from miscellaneous sources, where there is a delay in the collection of assessments in the corresponding special assessment fund, and reimburse itself by paying such bonds out of the special assessment when collected. In support of this contention it is insisted that paragraph 2 of section 62, article 5, chapter 24, of the statute, authorizes the city council to appropriate money for corporate purposes only, and provides for the payment of debts and expenses of the corporation, and that under this section the city has power to authorize the purchase of the bonds in the manner above described on the ground that such purchase is a corporate purpose. The sections of the statute providing for the making of local improvements are complete in themselves. They provide the manner in which the assessment shall be originated, how the contract shall be let, how the work shall be done, how the bonds shall be issued and how the collections shall be made. As we have already said, this method of levying a special assessment is contrary to the dominant policy of the State and should not be construed beyond the clear import of the language used. Section 73 of the Local Improvement act (Hurd’s Stat. 1903, p. 408,) provides that in case it shall appear that the assessment can not be collected, the municipality shall nevertheless not be in any way liable to the contractor in case of failure to collect the same, but it shall, so far as it can legally do so, with all reasonable diligence cause a valid assessment to be levied to defray the cost of the work until the contractor shall be fully paid.

Section 90 of the same chapter provides that no person- or persons accepting vouchers or bonds shall have any claim or lien upon the city for the payment of such voucher or bonds, or the interest thereon, except from the collection of the assessment against which the voucher or bonds are issued, and the municipality shall nevertheless be in no way liable to the holders of said voucher or bonds in case of failure to collect the same, but the city shall use reasonable diligence to cause the assessment to be made and collected and the bonds and vouchers to be fully paid.

It will be seen from these provisions of the statute that it was the evident purpose and intention of the legislature to in no way hold the city responsible or liable for the vouchers, bonds or interest. This is a positive statutory provision, which would have priority over paragraph. 3 of section 62, article 5, chapter 24, as quoted by appellants. The city is powerless, by any ordinance which it might pass, to make itself liable in the face of the express provisions of the statute'. While it might be of advantage to the city, and save money to the property owners and tax-payers, for the city to assume responsibility for the bonds thus issued, yet in the absence of legislative authority it is powerless so to do.

We find no reversible error, and the decree of the circuit court and the judgment of the Appellate Court will be affirmed.

Judgment .affirmed.