People ex rel. Hawkinson v. Mathews , 282 Ill. 85 ( 1917 )

Dunn, Cartwright and Duncan, JJ.,

dissenting:

Sections 9 and 10 of article 9 of the constitution provide that the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments or by special taxation of contiguous property, or otherwise, and that for all other corporate purposes all municipal corporations may be vested with authority to assess and collect taxes, and that the General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes. These sections prohibit the General Assembly from imposing taxes on the people of any district or granting power to do so to any other than corporate authorities of the district to be taxed, and the corporate authorities intended are such municipal officers as have been elected directly by the people of the district or appointed in some mode to which the people of the district have given their consent. (Updike v. Wright, 81 Ill. 49; Cornell v. People, 107 id. 372; Wetherell v. Devine, 116 id. 631; Herschbach v. Kaskaskia Island Sanitary District, 265 id. 388.) Since the act of 1911 was unconstitutional, the attempt to organize Township High School District No. 121 was ineffectual and did not establish a high school district. Since there was no incorporation there could be no corporate authorities. The supposed board of education in levying taxes was acting without authority of law, and the tax which it purported to levy was void and imposed no liability on the people of the district. Such supposed board of education having no power to levy a tax, the legislature was without power, under the constitution, to pass a law rendering the void proceeding by which it attempted to do so, valid. The power of the legislature to validate by a curative law any proceedings which it might have authorized in advance is limited to cases of the irregular exercise of power. It cannot cure the want of authority to act at all or confirm what it could not originally have authorized. (People v. Wisconsin Central Railroad Co. 219 Ill. 94.) Since the supposed board of education was not the corporate authority of a high school district it had no power to levy a tax, and the legislature had no power to validate its void attempt to do so. Section 1 of the act of 1917 provides that “the board of education acting for each such district is hereby declared to be the duly constituted corporate authority thereof,” and it is by this legislative declaration, only, and not by an election by the people of the district, or in any other mode to which they have given their consent, that such corporate authorities have been appointed.

The situation here is not different from that in the case of Marshall v. Silliman, 61 Ill. 218. There an election to vote upon the question of subscribing for $15,000 of stock in a railroad company and issuing bonds to pay for it was held in a township without authority of law. It was held that this was an utterly void proceeding. After the election the legislature passed an act which purported to legalize and confirm the election and declared it to be binding upon the township. The court said that this law, if valid, had the effect of creating a debt of $15,000 against the township, and that the subscription to the bonds, if binding, became so for the first time at the passage of the law and was so solely' by force of the law. It was stated that the real question did not depend merely upon whether the legislature could pass a retrospective law, but upon whether it could create a debt against a town. The court said: “It cannot be said that the town has ever consented to the creation of this debt. The so-called vote was an idle form. Persons opposed to the subscription were under no necessity or obligation to vote against it because they had a right to regard the entire proceeding as a nullity. The vote can no more be accepted as the action of the town, or as giving the consent of the town to the creation of this debt, than would a resolution adopted by the same number of persons at one of their dwellings or in a casual encounter at a street corner.” Coming to the question whether the legislature could create a debt against a municipal corporation for municipal purposes, the court held that the constitution of 1870 expressly prohibits this, and that the decisions of the court substantially held that it could not be done under the constitution of 1848. After quoting the latter constitution and citing cases the court announced its conclusion that “these cases show it to be the settled doctrine of this court that under the constitution of 1848 the legislature could not compel a municipal corporation to incur a debt for merely local purposes against its own wishes, and this doctrine, as already remarked, has received the sanction of express enactment in our existing constitution. That was the effect of the curative act under consideration, and it was therefore void.”

In our judgment the act of June 14, 1917, so far as it purports to legalize and validate the proceedings of the board of education whose members have not been elected by the people of the district or appointed in any manner to which they have consented, in levying taxes, is beyond the legislative power and imposes no liability upon the taxpayers of the district, and the judgment of the county court should be reversed.