West Chicago Park Commissioners v. Brenock , 1886 Ill. App. LEXIS 36 ( 1886 )

Moran, J.

On a bill filed by the defendant in error, the circuit court entered a decree restraining the West Chicago Park Commissioners from ¡laying, and Harvey M. Thompson, as its president, from receiving, the sum of twenty-five hundred dollars, voted by said board to said Thompson as a salary as president of the board.

The entering of said decree is assigned for error, and the question presented is, whether said West Chicago Park Commissioners had authority to vote a salary to the president of said board. °

The act creating the Board of West Chicago Park Commissioners provides, among other things, that “ The said commissioners shall receive no compensation for their services, except the president, who may, in the discretion of said board, have and receive such compensation as may be fixed, as hereinafter provided, not to exceed four thousand dollars per annum.” R. L. 1869, Vol. 3, p. 342.

In 1871 the legislature passed an act entitled “ An act to enable corporate authorities of towns to levy a tax to improve public parks and boulevards, and to provide for the extension of boulevards, and regulating the duties of park commissioners and limiting the period within which they may he paid salaries.”

Sec. 7 of said act declared: “ Ho park commissioner shall receive any salary for personal services, or be directly or indirectly interested in the purchase or sale of park lands or park bonds, and all transactions in violation of this section shall be null and void, and the commissioner so offending shall forfeit his office * * * * provided, that the provisions of this section shall not take effect until December thirty-first, eighteen hundred and seventy-two.”

The contention of counsel for plaintiff in error is, that the act creating the West Park Board was a special act; that the act of 1871 is a general act, and that the discretion given to the hoard in the special law, to allow the president a salary^ will not be repealed by implication, by a general law.

While the act of 1871 is in terms general, it affects, by its provisions, the corporations and persons to whom by its terms it is made applicable.

The West Chicago Park Commission is a quasi municipal corporation and the Supreme Court has decided that it was described by the definition of the class which the legislation was to affect. West Chicago Park Commissioners v. W. U. T. Co., 103 Ill. 33; Kedzie v. W. C. P. Comm’rs, 114 Ill. 280.

That repeals by implication are not favored is true; and when there is room to so construct the acts that the two may stand, it will be done. But when there is a positive repugnancy between the latter and former act, the law must be found in the last and the prior must be held to be repealed.

By the exception in the act of 1869, the commissioner who for the time being should be president of the board, might have such compensation as president, as the board in its discretion should fix, not to exceed four thousand dollars.

By the act of 1871 it is declared that no park commissioner shall receive any salary as compensation for personal services.

These two provisions relate to the same subject, i. e., compensation or salary of commissioners.

The 'after provision is utterly repugnant to the exception in the former act. By no reasonable construction can the acts be reconciled, so as to leave in the board the discretion as to a salary for the president, which was given in the first act, and it must he held that to that extent it was the intention of the legislature, by the law of 1871, to abrogate the act of 1869.

In 1873 the legislature passed another act which, by description of the class intended to be included within its provisions, was by the same language as that used in the law of 1871 made applicable to the West Chicago Park Commissioners.

By it the act of 1871 is repealed in toto, and it declares in Sec. 14, “Ho member of such board of park commissioners shall be directly or indirectly interested in the purchase or sale of any park lands, or in any contract for the improvement of any park, or shall receive any compensation for personal services, except such and only such as provided by the act creating such hoard of park commissioners.”

The foregoing section had not the effect of restoring to the board the discretion vested in it by the act of 1869: “ No act or part of an act repealed by the general assembly shall be deemed to he revived by the repeal of the repealing act.” R. S. Chap. 131, Sec. 3 ; Day v. Clinton, 6 Bradwell, 476.

It must therefore he concluded, that the Board of West Chicago Park Commissioners had no authority to vote or pay to the president of said board any salary or compensation, and the decree of the circuit court restraining the payment of such salary must be affirmed.

Affirmed.