Judges： Bailey, Magruder
Filed Date： 6/12/1890
Status： Precedential
Modified Date： 10/19/2024
delivered the opinion of the Court:
By the averments of their plea, the truth of which is admitted by the demurrer, the defendants have established their title to the office which the information charges them with having usurped, unless the act under which the Sanitary District of Chicago is organized is so far unconstitutional as to render the organization of said district and the election of its trustees inoperative and void. This seems to be admitted by ■counsel, since the only questions presented by them for our consideration are those which involve the validity of said act. Counsel for the prosecution insist that the act as a whole, and in various of its subordinate provisions, contravenes the Constitution of the State, but as this proceeding involves the single ■question of the defendants’ title to the office which they are charged with having usurped, no objections to the act need be considered except those which go to the validity of the organization of the district and of the election of its trustees. The various grounds upon which the constitutionality of the act is assailed may be summarized as follows:
1. That the 'title of the act expresses and the act embraces more than one subject.
2. That the act embraces various subjects which are not expressed in the title.
3. That the act is a local or special act.
é. That it provides for cumulative voting at the elections of the trustees of the sanitary districts organized under it.
5. That in providing the machinery for the organization of sanitary districts, the act imposes upon the judge of the County Court and two judges of the Circuit Court duties which are incompatible with their duties and functions as judges of those courts.
6. That the act is an evasion of the constitutional provision which limits the indebtedness which a municipal corporation shall be allowed to incur in any manner and for any purpose to five per centum of the value of the taxable property therein.
7. That the municipal authorities of sanitary districts are vested with the power of general taxation, and are not limited to special assessments upon the property benefited for the ' payment of the drainage system which they are authorized to construct.
Of these propositions, the third, sixth and seventh are sufficiently considered in Wilson v. Board of Trustees of Sanitary. District of Chicago et al. ante, p. 443, and we do not deem it necessary to add anything here to what we there said. In that case we held that upon neither of these grounds can said act be declared unconstitutional, and in support of that conclusion we need now only refer to the opinion there filed.
The first two of the grounds above mentioned upon which the constitutionality of said act is assailed are based upon the following provision of section 13, article 4, of the Constitution of 1870, viz: “No act hereafter passed shall embrace more than one subject and that shall be expressed in the title. But if any subject shall be embraced in. an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. ”
Formerly the title to an act was considered no part of it, and although it might be looked to as a guide to the intent of the law-makers when the body of the statute appeared to be in any respect ambiguous or doubtful, yet it could not enlarge or restrain the provisions of the act itself, and the latter might therefore be' good when that and the title were in conflict. Nor was there any rule forbidding the incorporation into the same act of as many different subjects as the legislature might see fit, entirely regardless of whether they bore any logical, relation to each other or not. While these rules prevailed, the enactment of laws became subject to very serious abuses. These, in the main, consisted, first, of incorporating into the same bill various measures having no proper relation to each other1, so as to enlist in favor of the bill support which neither measure singly could obtain on its own merits. This resulted in a species of “log-rolling” legislation, which was both corruptive of the legislature and dangerous to the State. In the second place, titles were often prefixed to bills which were inadequate or misleading, or which afforded no intimation whatever of the true nature of the measure proposed, thus deceiving the members of the legislature and the public. That these were serious evils can not be doubted, nor can we doubt the wisdom of those constitutional provisions which have been adopted for their correction.
But while these provisions should be so construed as to put an end to legislation of the vicious character above referred to, it is not their design to embarrass legislation by making laws unnecessarily restrictive in their scope and operation. People v. Mahaney, 13 Mich. 481. Their general purpose is accomplished when a law has but one general object which is fairly indicated by its title. The generality of a title is therefore no objection to it, so long as it is not made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. The legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title defining it. Cooley’s Const. Lim. (5th ed.) 174.
It should be remembered in this connection that every presumption is in favor of the validity of a statute, It follows that every reasonable doubt must be resolved in favor of the action of the legislature, and that where such doubt exists the statute must be sustained. Cooley on Const. Lim. 218, and authorities cited in notes. As said by Chief Justice Shaw in Wellington et al. Petititioners, etc. 16 Pick. 87: “When called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.” In E. & N. E. R. R. Co. v. Casey, 26 Pa. St. 287, and again in Powell v. Commonwealth, 114 id. 265, the Supreme Court of Pennsylvania lays down the same doctrine in the following language: “The right of the judiciary to declare a statute void and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases. One department is bound to presume that another has acted rightly. The party who wishes to pronounce a law unconstitutional takes upon himself the burden of proving beyond a reasonable doubt that it is so.” The foregoing is familiar law, and has frequently been announced as such by this court. C., D. & V. R. R. Co. v. Smith, 62 Ill. 268; Hawthorn v. The People, 109 id. 302; People v. Hazelwood, 116 id. 319; Wulff v. Aldrich, 124 id. 591; Field v. The People, 2 Scam. 79; Lane v. Dorman, 3 id. 237; People v. Marshall, 1 Gilm. 672; People v. Reynolds, 5 id. 1.
Akin to the principles above stated, or following as a legitimate corollary therefrom, is- the further rule that, whenever an act of the legislature can be so construed and applied as to avoid a conflict with the Constitution and give it the force of law, such construction will be adopted. Newland v. Marsh, 19 Ill. 376 ; Bigelow v. W. W. R. R. Co. 27 Wis. 478; Attorney-General v. Eau Claire, 37 id. 400 ; Dow v. Norris, 4 N. H. 16; People v. Supervisors, 17 N. Y. 235.
The relator, as we have already seen, in alleging that the act in question contravenes the clause of the Constitution which provides that no act shall embrace more than one subject and that such subject shall be expressed in the title, presents two propositions, first, that both the act and the title embrace more than one subject, and, second, that the act embraces various subjects which are not expressed in the title. These propositions must be considered separately, since it is manifest that sustaining the first would involve very different legal consequences from those which would follow if the second only should he sustained. If the act embraces two subjects and both are expressed in the title,. the entire act must be declared void, as in that case the proviso that if any subject is embraced in the act which is not expressed in the title the act shall be void only as to so much as is not so expressed, can have no application. If two subjects are both embraced in the act and expressed in the title, we can not elect between them so as to preserve one and reject the other, but the entire act must fall by reason of being in contravention of the constitutional limitation. If the objection, however, is only that the act embraces several subjects of which hut one is expressed in the title, the subjects not expressed may be rejected, and the act, so far as it relates to the subject expressed in the title, may be held to be valid.
As we have said, the generality of the subject expressed in the title is no objection to it, since it is purely a matter of legislative discretion whether the subject expressed shall be general or specific. And it is clear that the broader and more general the subject, the greater the number of particular or subordinate subjects which will be embraced within it. Thus, to illustrate, if the title of an act should be, “An act to define and punish the crime of larceny,” it is clear that provisions defining perjury, arson or felonious homicide and fixing the punishment of those offenses would be subjects wholly foreign to the title of the act. But if the title should be, as is. the case with our present Criminal Code, “An act to revise the law in relation to criminal jurisprudence, ” the subject thus expressed would clearly be broad enough to include provisions defining and fixing the punishment, not only of these, but of all other imaginable offenses against the public law, and also all proper provisions for the prevention of crimes, for the indictment, trial, conviction and punishment of all classes of offenders, and for fixing the jurisdiction, both original and appellate, of the various courts in criminal cases, and prescribing the mode of procedure and the rules of' evidence applicable to criminal trials. These subjects, multiplied as they are in detail, are all included in the general subject of criminal jurisprudence, and if the title of our Criminal Code, in expressing the subject of the act, had added to the words, “to revise the law in relation to criminal jurisprudence,” as follows: “and to define and punish larceny, perjury, arson,” etc., inserting a catalogue of every distinct species of crime known to the law, there would still have "been but one subject expressed.
In Bitters v. Board of Commissioners, 81 Ind. 125, the court, in discussing the validity, in view of a similar provision of the Constitution of that State, of an act the title of which contained various specifications of subjects, say: “A subject may be composed of many parts. It does not follow that because the title of a statute enumerates many particulars, there are, therefore, many subjects. If there is but one subject the act is valid although the subject may be composed of many parts, and all of them are enumerated in the title.” ' In Clare v. The People, 9 Colo. 122, the court having under consideration a similar title, say: “There being one general subject expressed, the fact that the legislature saw fit to incumber this title with two specifications under that subject does not-render it obnoxious to the constitutional objection now urged. One of the two purposes effected by this constitutional provision was, to prevent uniting with each other in statutes incongruous matter having no necessary connection or proper relation; and where, as in the case at bar, one general subject is expressed, the addition of subdivisions thereof does not necessarily vitiate the whole title.” The true rule in cases of this character seems' to us to be well expressed in Shoemaker v. Smith, 37 Ind. 122, as follows: “If the different particulars enumerated are to be regarded as so many different subjects, then the law is wholly void because of a multiplicity of subjects. If, on the other hand, the enumerated particulars do not embrace different subjects, but have reference to one subject, which is not sufficiently expressed in the title, the law is still void. If, however, the enumerated particulars are not expressive of different subjects but of one general subject, which is sufficiently expressed, the law is valid.”
The title to the act before us is, “An act to create sanitary districts, and to remove obstructions in the Des Plaines and Illinois Rivers.” The general subject .thus expressed is, the creation of sanitary districts, and the question is, whether the removal of obstructions in the Des Plaines and Illinois rivers is so far germane to that subject as to constitute a part of it. Sanitary districts are municipal corporations which, in their constitution and purpose, are unlike any class of municipal corporations heretofore existing in the State. They are, so to speak, a new product of the creative power of the Legislature. Their character and purpose are both indicated and limited by the word “sanitary,” and it must be admitted that the general objects and purposes of the municipal corporations organized under said act must be restricted to such as are fairly to be implied from the use of that word. The word “sanitary” is defined by Webster to mean, “pertaining to, or designed to secure, sanity or health; relating to the preservation of health.” It would seem to follow that a sanitary district is, ex vi termini, a municipal corporation organized to secure, preserve and promote the public health. This being the general purpose of the organization, it must be admitted that any subsidiary measure having a greater or less tendency to promote that object, or to advance the general scheme by which it is proposed, through the agency of such organization, to preserve and protect the public health, is germane to the general subject of the act.
All corporations, as they exist in this country, are the creatures of legislative power, and it necessarily follows that the determination as to what shall be their constitution, ohjects and powers is a matter wholly within the legislative discretion. That discretion is undoubtedly controlled by the constitutional provision limiting every legislative act to one subject and requiring that subject to be expressed in the title, but except so far as controlled by such limitations as the Constitution imposes, the discretion is absolute. The Legislature having in this case adopted a title which expresses as the subject of the act the creation of sanitary districts, it thereby limited itself to the greation of corporations having for their general object the promotion and preservation of the public health, but complete discretion was retained as to the character and scope of the scheme to be adopted for the attainment óf that object. In construing what the Legislature has done in the exercise of that discretion therefore, every reasonable intendment must be indulged in which favors their validity. If the general scheme adopted is one which, upon any rational theory, is calculated to promote the object for which the corporation is created, and if the subsidiary provisions of the act are calculated, upon any rational theory, to promote and further the general scheme, the provisions of the act can not be foreign to the general subject expressed in the title.
The general sanitary scheme adopted by the act consists of creating certain districts comprising certain areas of contiguous territory, and empowering such districts to construct and maintain a common outlet for the drainage and sewage of their respective territories. . That scheme is indicated in the first section of the act as follows: “That whenever any area of contiguous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary .district under this act.” Of course it must be conceded, both . as a historical fact and "as a fact abundantly shown by the terms of the act itself, that this scheme was formulated mainly if not exclusively with reference to the sanitary condition and needs of the city of Chicago and its environs, and we can not give proper construction to the act. without taking into account the peculiar situation of the territory which the proposed Sanitary District of Chicago was intended to embrace. Chicago is a city of probably one million inhabitants or more, and is bordered on the east by Lake Michigan, that lake being the source of its water supply. A few miles west of Chicago, and running in a north and south direction, is the Des Plaines Biver, and at a point opposite the southerly part of the city said river turns toward the south-west and runs in that direction to the city of Joliet, below which it is known as the Illinois Biver. The territory between Lake Michigan and the Des Plaines Biver, and along the course of that river to Joliet, is nearly level, none of it being more than a few feet above the level of the lake, while at Joliet the general surface is quite a number of feet below the level of- the lake. The object of the system of drainage proposed by said act is, to prevent the drainage and sewage of the city and its environs being carried into Lake Michigan, thereby contaminating the waters of the lake. This result is to be reached by cutting a channel which will give an outlet for the drainage and sewage of the city in the direction of the Des Plaines and Illinois Bivers, and which will also cause a large flow of water from the lake through the proposed artificial channel into those rivers for the purpose of diluting the sewage and rendering it innocuous to the people living along the course of those streams.
The question then arises whether the removal of obstructions from the Des Plaines and Illinois Bivers is or is not germane to this scheme of drainage. If in any point of view the removal of said obstacles will be rendered necessary by the increased flow of water in those rivers, or if such removal can be deemed to be in any way subsidiary to the drainage system or promotive of its proper objects, it must be held to be a part of the system, although it may incidentally result in the improvement of those rivers for purposes of navigation. And in that case the expression of such removal in the title of the bill can not be deemed the expression of another subject, but the enumeration of a particular matter included in the general subject already expressed.
We think it clear that the removal of obstructions in said rivers may, and probably will, be rendered necessary as a part of the work required to secure the proposed drainage. The act contemplates a minimum flow of 300,000 and a maximum flow of 600,000 cubic feet of water per minute through the proposed artificial channel into said rivers, and it is likely that, in order to prevent, so far as possible, damage to riparian lands by floods caused by the increase in the volume of water’, it will become necessary to remove various obstructions now existing in said rivers. Among these are the dams heretofore constructed by the State for the purpose of improving the navigation of the Illinois River, and the act specifically confers upon the district the power to make such removal.
We are of the opinion then that the act is capable of such construction as will relieve its title from the charge of duplicity of subjects, and such construction being -logically possible, it is the one which must be adopted. But we are of the opinion that said construction is not only logically possible, but that it is the obvious and only fair construction which can be placed upon the act. The same course of reasoning also relieves the act itself from the charge of duplicity of subjects, at least so far as the matter of removal of obstructions in said rivers is concerned.
Having disposed of the objections to said act growing out of the form of the title, it remains to be seen whether the act itself embraces subjects not expressed in the title, and is invalid for that reason. The first six sections of the act prescribe the mode in which sanitary districts may be organized, and provide for the election of nine trustees and for their organization into a board of trustees, and constitute them the corporate authorities of their district. Said sections also provide for the appointment of a president and various subordinate officers of the board, and empower the board to pass all necessary ordinances, rules and regulations for the proper management and conduct of the business of the board and of the corporation, and for carrying into effect the objects for which such sanitary district is formed.
' Section 7 authorizes the board of trustees “to provide for the drainage of such district, by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner; also to make and establish docks adjacent to any navigable channel made under the provisions hereof for drainage purposes, and to lease, manage and control such docks, and also to control and dispose of any water-power which may be incidentally created in the construction and use of said channels or outlets, but in no case shall said board have any power to control water after it passes beyond its channel, waterways, races or structures into a river or natural water-way or channel, or water-power or docks, situated on such river or natural waterway or channel: Provided however, nothing in this act shall be construed to abridge or prevent the State from hereafter requiring a portion of the funds derived from said water-power, dockage or wharfage to be paid into the State Treasury to be used for State purposes. Said channels or outlets may extend outside of the territory included within such sanitary district, and the rights and powers of said board of trustees over the portion of such channel or outlet lying outside of such district shall be the same as those vested in said board over that portion of such channels or outlets within said district.” '
Section 8 authorizes such sanitary district to acquire by purchase, condemnation or otherwise, the right of way or privilege, either within or without its corporate limits, that may be required for its corporate purposes. Section 9 authorizes the district to borrow money and issue its bonds therefor, but not so as to become indebted to an amount in the aggregate exceeding five per centum on the valuation of the taxable property therein, and not to exceed $15,000,000. Section 10 provides that before incurring any indebtedness, the board of trustees shall provide for the collection of a direct tax sufficient to pay the interest as it falls due, and also to pay and discharge the principal thereof at maturity, and at least within twenty years from the time of contracting the same, but authorizes the application of the net earnings from water-power and docks to the payment of the interest or principal, and provides for a corresponding reduction of the direct tax whenever such net earnings shall be so applied.
Section 11 directs that all contracts for work to be done by such district, the expense of which will exceed $500, shall be let to the lowest responsible bidder, after giving certain notice, but provides that no person shall be employed on said work who is not a citizen of the United States, or has not in good faith declared his intention to become such citizen, and declares that the neglect by any person having made such declaration of intention to perfect his naturalization for the space of three months after he can lawfully do so, shall be prima facie evidence that his declaration was not made in good faith. Section 12 limits the amount of taxes which may be levied and collected by such district to one-half of one per centum per annum on the taxable property of the district, and prescribes the mode of levying and collecting the same.
Section 13 gives the board of trustees power to defray the expense of any improvement by special assessment, or by general taxation, or partly by each, and it is provided that it shall constitute no objection to a special assessment that the • improvement for which it is levied is partly outside of the district, but that no property outside of the district, shall be assessed, and that no property shall be assessed more than it will be benefited by the improvement. Sections 14,15 and 18 relate to the mode of making special assessments. Section 16 relates to the mode of making compensation for private property taken or damaged.
Section 17 provides that when it shall be necessary in making any improvement, to enter upon any public property, or property held for public use, the district shall have the power to do so, and may acquire the necessary right of way over such property in the same manner as is in said, act provided for acquiring private property, and may enter upon, use, widen, deepen and improve any navigable or other waters, water-ways, canal or lake, provided the public use thereof shall not be unnecessarily interrupted or interfered with, and that the same shall be restored to its former usefulness as soon as practicable, and provided that the district shall not occupy any portion of the Illinois and Michigan Canal outside of the limits of the county in which the district is situated for the site of any such improvement, except to cross the same, and then only in such way as not to impair the usefulness of said canal, or to the injury of the rights of the State therein, and only under the direction and supervision of the Canal Commissioners, and provided further, that no district shall be required to make any compensation for the use of so much of the canal as lies within the limits of the county, except for transportation purposes.
Section 19 makes each sanitary district liable for all damages to real estate, within or without the district, which shall be overflowed or damaged by reason of the construction, enlargement or use of any channel, ditch, drain, outlet or other-improvement under the provisions of the act, and provides the mode in which the same may be recovered. Section 20 provides that any channel or outlet which shall cause the discharge of any sewage into or through any river or stream of water beyond or without the limits of the district shall be of sufficient size and capacity to produce a continuous flow of water of at least 200 cubic feet per minute for each 1000 of the population of the district drained thereby, and shall be kept and maintained,of such size and in such condition that the water thereof shall be neither offensive nor injurious to the health of any of the people of the State, and that before any sewage shall be discharged into such channel or outlet, all garbage, dead animals and parts thereof and other solids shall be taken therefrom.
Section 21 provides that in case any sanitary district shall introduce sewage into any stream of water or natural or artificial water-course beyond the limits of the district, without conforming to the provisions of the act, or shall fail to comply with the provisions of the act, suit shall be brought by the Attorney General to enforce such compliance. Section 22 declares that nothing contained in the act shall be construed as a contract or grant between the State and a sanitary district, or to deprive the State, at any time in the future, of the power to alter, amend or repeal the act, or to impose different or additional conditions, restrictions or requirements.
Section 23 provides that if any channel is constructed by which the waters of Lake Michigan shall be caused to pass into the Des Plaines or Illinois Rivers, such channel shall be of sufficient size and capacity to produce and maintain at all times a continuous flow of not less than 300,000 cubic feet of water per minute, and to be of a depth of not less than 14 feet and having a current not exceeding three miles per hour; and if any portion of the channel shall be through rock, such portion shall have double the flowing capacity above provided for, and a width of not less than 160 feet at the bottom, and capable of a depth of not less than 18 feet of water; and that if the population of the district drained into such channel shall at any time exceed 1,500,000, such channel shall be made and kept of such size and condition as to produce and maintain a continuous flow of not less than 20,000 cubic feet of water per minute for each 100,000 of the population of such district, at a current of not more than three miles per hour; and that if at any time the General Government shall improve the Des Plaines or Illinois Rivers so that the same shall be capable of receiving a flow of 600,000 cubic feet of water per minute or more from said channel, and shall provide for the payment of all damages which any extra flow above 300,000 cubic feet per minute may cause to private property, said district shall within one year enlarge the entire channel to a sufficient capacity to produce and maintain a continuous flow through the same of not less than 600,000 cubic feet of water per minute, with a current of not more than three miles per hour, and the channel shall be constructed upon such grade as to be capable of producing a depth of water of not less than 18 feet of water throughout said channel, and shall be of a width of not less than 160 feet at the bottom. And in case such channel shall be constructed in the Des Plaines River, it shall be carried down the slope between Lockport and Joliet to the pool commonly known as upper basin of sufficient width and depth to carry off the water which the channel shall bring down from above. And it is further provided that the district may correct, modify and remove obstructions in the Des Plaines and Rlinois Rivers whenever it shall be necessary so to do to prevent overflow or damage along said rivers, and shall remove the dams at Henry and Copperas Creek in the Illinois River before any water shall be turned into said channel; and the Canal Commissioners are empowered, in ease they find a certain stage of water produced by said drainage, to remove the lock in the Illinois and Michigan Canal at LaSalle.
Section 24 provides that when the channel shall be completed and the water turned therein to the amount of 300,000 cubic feet per minute, it shall be declared a navigable stream; and that whenever the General Government shall improve the Des Plaines and Illinois Rivers for navigation to connect with said channel, it shall have full control over the same for navigation purposes, but not to interfere with the control thereof by the district for sanitary and drainage purposes. Section 25 authorizes any sanitary district formed under said act to permit outlying territory to drain into and use its channels and drains, and authorizes any district to contract for the right to use any drain or channel which may be made by another district, and fixes the terms upon which such contract may be made.
Section 26 provides that whenever, in any sanitary district there shall be a city, incorporated town or village which owns a system of water-works and supplies water from a lake or other source, which will be saved and preserved from sewage pollution by the construction by a- sanitary district of its main channel, drain, ditch or outlet and the turning of the sewage of such city and district therein, and there shall be in such district any territory bordering on such city, incorporated town or village within the limits of another city, incorporated town or village which does not own any system of water-works at the time of the creation of the sanitary district, then, upon application of the corporate authorities of the last mentioned city, town or village, the corporate authorities of the city, town or village having such system of water-works shall furnish water at the boundary line between such municipalities by means of its water-works, to the corporate authorities asking for the same, in such quantities as may be required to supply consumers within said territory, at no greater price or charge than it charges and collects of consumers within its limits for water furnished through meters in like large quantities.
The 27th and last section provides that, if a channel shall be constructed under the provisions of section 23, it shall be the duty of the trustees of the district, before any water or sewage shall be admitted therein, to notify the Governor, and that the Governor shall appoint three commissioners who shall be residents at certain designated points along the Illinois River, and that such commission shall meet and make examination of the channel to ascertain whether it is of the character and capacity required by said act, and that if they find it in all respects in accordance with the provisions of section 23, they shall so certify to the Governor, who shall thereupon authorize the water and sewage to be let into said channel; but if they find it not in accordance with the provisions of said act, it shall be their duty to file a bill in chancery against the •district, setting forth wherein the work is deficient, and that the court shall thereupon restrain the district from letting water or sewage into the channel until the further order of the court; and in case the court, on hearing, shall determine that the channel is not constructed in accordance with the provisions of said act, said injunction shall be continued until said provisions are complied with. Said commissioners and their engineer are to be paid for their services out of the State Treasury, such payments to be reimbursed to the State by the sanitary district; and it is further provided if any channel shall discharge the sewage of more than 300,000 inhabitants into any river beyond the limits of the district, it shall be constructed in accordance with the provisions of section 23, and if any channel receives its supply of water from any river or channel connecting with Lake Michigan, it shall be construed as receiving its supply of water from said lake.
It is believed that the foregoing resume of said act is sufficiently full to present every feature of the act upon which is based the claim that it embraces a multiplicity of subjects, but the exigencies of this appeal do not render it necessary for us to consider every point of this character made by counsel. It may be that there are some provisions of the act which will be found to involve subjects not expressed in the title, though as to whether such is the case or not we express no opinion, except so far as we shall hereafter give to certain points made special consideration. It may, however, be said generally that none of the points made by counsel in this branch of their argument, if sustained, would invalidate the defendants’ title to the office of trustees of the Sanitary District of Chicago. The only consequence of the inclusion in an act of subjects not expressed in the title is the invalidation of so much of the act as relates to those subjects, and none of the subjects alleged to be foreign to the title involve the question of the legality of the organization of the district, or of its power to elect trustees to manage its affairs.
Among the provisions of the act which are said to involve subjects foreign to the title is the one which forbids the employment upon the- works to be constructed by the district of any person who is not a citizen of the United States or has not in good faith declared his intention to become such citizen, and which prescribes what shall be deemed prima facie evidence of want of good faith in making such declaration of intention. It is said that this is an attempt to legislate in regard to the naturalization laws of the United States, and undertakes to modify the rights of those who have declared their intention to become citizens, and that it therefore involves a subject, wholly foreign to that expressed in the title of the act. We are unable to view this provision in the light here suggested. In the creation of municipal corporations of a certain character, the subject expressed in the title of the act, includes, ex vi termini, the investing of the corporations created with all necessary and proper powers, functions and duties, and provisions directing the mode in which those powers, functions and duties shall be exercised and performed, and prescribing the rules of public policy which shall obtain and be observed in their performance, are clearly germane to the same subject. The sanitary districts provided for by the act are organized for the purpose of constructing important public works, and a provision prescribing the qualifications of the persons who shall be employed on such works is strictly germane to the general subject of constructing the works. And it is competent for the Legislature to establish, as a rule of public policy, that none but citizens or those who in good. faith have taken the preliminary steps to secure naturalization shall be employed thereon, and also to establish a test by which the good faith of persons declaring their intention to become citizens may be determined. These provisions constitute no interference with the naturalization laws, nor do they take from one who has declared his intention to become a citizen any of his rights. Such declaration of his intention vests him with no right to be employed in the construction of these works, and it is therefore left wholly within the discretion of the Legislature to determine when and under what circumstances a man who has only taken the first step towards obtaining naturalization shall be qualified for employment in the construction of the proposed works.
It is urged, in the next place, that said act, in addition to the creation of the sanitary district and empowering it to construct and maintain a channel capable of producing the requisite flow of water through and out of the district, legislates in relation to the Des Plaines and Illinois Rivers and the Illinois and Michigan Canal, and in relation to the removal of the lock in the canal at LaSalle and the dams in the river at Henry and at Copperas Creek, and gives power to deepen, widen and improve these several water-ways, which are the property of the State, each of these matters, as is claimed, being subjects distinct from that embraced in the title. On this point we need add but little to what has already been said. The sanitary district is organized to construct a system of drainage which, in its results, will necessarily affect said rivers, canal and water-ways, and which therefore necessitates a proper adjustment of said water-ways to the altered condition of things which said system of drainage, when completed, will bring about. If the large volumes of water contemplated by the act are turned into the Illinois River, the river itself as well as the rights of the owners of riparian lands will be more or less prejudicially affected throughout its entire length. The act would manifestly be incomplete in carrying out and perfecting the subject matter of the title, if it permitted the , district to discharge the water flowing through the proposed channel into the Illinois Eiver, and imposed upon it no duty to take proper steps for the protection of the river and the riparian lands against the necessary consequences of the largely increased volume of water. The provisions of the act conferring upon the district powers and imposing upon it duties in relation to the water-ways beyond the terminus of its own channel, were inserted for this purpose, and are therefore a part and a necessary part of the general system of drainage for sanitary purposes embraced within the subject expressed in the title.
Again, it is said that the act embraces a duplicity of subjects because, in addition to empowering the district to construct and maintain a channel of certain dimensions and capable of producing a flow of water of certain magnitude, for purposes of drainage, it declares the channel, when constructed, a navigable stream, and authorizes the district to make, establish, lease and control docks, and also to control and dispose of any water-power which may be incidentally created in the construction of said channel. The contention is, that three wholly independent and dissimilar subjects are here embraced, viz, the construction of a channel for purposes of drainage, the construction of docks for purposes of navigation, and the creation of a water-power for the purpose of driving machinery, and that the first of these only is expressed in the title of the act. It can not be doubted that a channel of the dimensions and capacity of the one the district is required to construct, when completed, will be capable of subserving all three of these purposes. It will be capable of carrying off the drainage and sewage from the district in such state of dilution by means of water drawn from Lake Michigan, as, 'according to the theory which the Legislature seem to have adopted at least, to be rendered innocuous. A .channel capable of doing this will, as a matter of necessity be sufficiently broad and deep to be capable of navigation by large vessels, and the fall from Lock-port to Joliet is said to be such that the water flowing through said channel will be capable of producing a very large and important water-power.
But these circumstances alone do not sustain the contention that the act embraces a duplicity of subjects. It can not be said that because the channel, when constructed, will be capable of answering the purposes of navigation and the driving of machinery, those purposes also entered into the legislative intent, and that the scheme was undertaken with the view of constructing a navigable water-way and of creating a water-power, as well as that of promoting and preserving the. public health by furnishing a suitable and efficient means of carrying off the drainage and sewage of the district. Bearing in mind the rule that every reasonable intendment should be in favor of the validity of a statute, and that every provision capable of it should receive the construction which will sustain the constitutionality of the act, there is, so far as this point is concerned, nothing in the act in question, if we except the provisions of section 7 which authorize the district to make and establish docks and to lease, manage and control the same, and to control and dispose of any water-power which may be incidentally created by the construction and use of said channel, and perhaps the provision of section 24 which declares the channel, when completed, to be a navigable stream, which will not clearly bear the construction of being referable solely to the subject of drainage for sanitary purposes. Such is the case with all those provisions which fix the locality, description, width, depth and capacity of the channel, and prescribe the rapidity of the current and the number of thousand cubic feet of water per minute which it shall be capable of carrying off. In other words, every provision of the act which relates to the construction and character of the channel and also those relating to the changes and improvements to be made in the Illinois River are all capable of being so construed as to refer solely to the subject of drainage, and that construction therefore is the one which they must receive. If then we entirely reject those provisions of section 7 which relate to docks and water-power, the act, so far as any question which can now be raised is concerned, remains wholly unimpaired. No provision which is vital to the organization of the sanitary district, or to the creation of the proposed drainage system is in the least affected.
Section 24, however, recognizes the obvious fact that the contemplated channel, when completed in such way as to accomplish in a satisfactory manner the purposes for which it is designed, will constitute a water-way capable of being utilized for purposes of navigation, and therefore declares what in the absence of such declaration would be the fact, viz, that, when so completed, it shall be a navigable stream. Section 7 also recognizes the fact that, as an incidental result, a large and valuable water-power will be created by the construction of the channel, and also that opportunities will be created for the construction along its course of valuable and remunerative properties by way of docks, and which may be made the source of considerable revenues. Assuming, as upon every recognized principle of construction we must, that the creation of these water-power and dock privileges is not the object or purpose of the act, still it is perfectly obvious that the accomplishment of that purpose will result incidentally in the creation of those privileges; and the question is, whether the district having, in the prosecution of its legitimate enterprise, brought these valuable privileges into existence, can utilize them as a source of revenue, for the purpose of paying the indebtedness incurred in the construction and maintenance of said channel and thus lighten the burden of taxation upon the property of the district. To answer this question in the negative would we think be placing upon the incidental powers of municipal corporations a narrower construction than the rules of law require.
Can it be doubted that, if the authorities of the district, in the excavation of their channel, should strike a quarry of valuable building stone, that they would have the right, either with or without express legislative authority, to derive a revenue from the sale of the stone which in the pursuit of their legitimate objects, they are compelled to quarry? And if they should do so, would they expose themselves to the charge of embarking in the independent business of quarrying and dealing in stone ? Clearly not. The power to dispose of property thus acquired so as to use the proceeds for legitimate corporate purposes would seem to be undoubted. And it would seem to be equally clear that the sanitary district having, as an incidental result of the prosecution of its corporate enterprise, created valuable water-power and dock privileges, will have a right to control and utilize those privileges for the purpose of raising a corporate revenue.
But it must be admitted that the power of the district to lease and control its water-power, and to construct, lease and control docks along its proposed channel, does not now arise, and can not arise until the channel is constructed and the district is in a position to exercise the power if it exists. Until then the question must be regarded as theoretical and not practical. Its existence or non-existence therefore is a matter aside from any question which the present litigation can legitimately raise.
A further point is based upon the language of the proviso in section 7, viz: “Provided, however, nothing in this act shall be construed to abridge or prevent the State from hereafter requiring a portion of the funds derived from such waterpower, dockage or wharfage to be paid into the State treasury to be used for State purposes.” It is said that this is unconstitutional because it compels the people of one class of municipal corporations to pay more than their share of the burdens of the State Government, to the relief of the balance of the State, and thus violates the principle of uniformity required by section 1, of article 9 of the Constitution. The answer to this point is obvious. The proviso does not attempt to divert any portion of the revenues of the sanitary districts to the State Treasury, but merely declares that the act shall not be construed to abridge the right of the State to hereafter require a portion of the funds to be derived from the wharfs, docks and water-power to be paid into the State Treasury. The effect of the act is to forbid a construction which would make of the act an inviolable contract between the State and the district by which the whole of the revenues of the docks and water-power is irrevocably devoted to the corporate purposes of the districts. It may well be doubted whether the proviso can be said to have any force whatever, as the charters of municipal corporations have never been held to be contracts within the protection of the Federal Constitution.
Furthermore, the proviso is in no sense an exercise of the power nor even an assertion of its existence, nor does it contain the slightest intimation that the power, if it exists, will ever be exercised. If then, as is contended, the. exercise of the power would be unconstitutional and void, a proviso which merely abridges the right of the State to attempt to exercise such void and unconstitutional power can have no legal force or significance whatever.
, As to the fourth proposition mentioned at the commencejment of this opinion upon which the constitutionality of said , act is assailed, viz, that it provides for cumulative voting at j the election of trustees of the sanitary districts organized under ij it, we might well content ourselves with saying that no such question necessarily arises upon this record. The third section of the act provides that: “In all elections for trustees each qualified voter may vote for as many candidates as there • are trustees to be elected, or he may distribute his vote among not less than five-ninths of the candidates to be elected, giving each of the candidates among whom he distributes the same the same number of votes or fractional votes.” It will thus j be seen that the right is accorded to each voter to vote for as S many candidates as there are trustees to be elected, and that« no voter is compelled to cumulate his vote upon less than the whole number. The defendants’ plea, which is admitted by the demurrer, alleges that the defendants and Christopher Hotz received a majority of all the votes cast at the election, and there is nothing in the record which tends to show that any voters in fact cumulated their votes upon less than nine candidates for the office of trustee. As cumulative voting is not shown it can not be presumed.
But if the question were directly presented, we are unable to see how the provisions of said act can be held to be in derogation of any constitutional provision. Section 1, article 7, of the Constitution, provides, that every male citizen of the United States over the age of twenty-one years, and possessing the requisite qualifications as to residence, etc., shall be entitled to vote at elections, and section 2 provides that all elections shall be by ballot. We see nothing in these provi-n sions in conflict with a statute which merely gives voters the option to cumulate their votes upon less than the whole num-1, her of candidates to be elected, so long as it leaves them free (; to vote for the whole number if they see fit to do so. If the act had made the cumulation of votes compulsory, a very different question would have been presented. In that case each voter would he deprived of the privilege of voting at the election of a part of the officers to be elected, and to that extent would be excluded from his constitutional right. The case would then be within the principle laid down in State v. Constantine, 42 Ohio St. 537, cited by counsel.
The point is made that the effect óf the sections of the Constitution providing for cumulative voting in the election of representatives, (Art. 4, secs. 7 and 8) and in the election of directors of private corporations (Art. 11, sec. 3), is to deny to the General Assembly power to authorize cumulative voting for any other purposes, upon the principle that the expression of one thing is the exclusion of another. This could be true only in the event that some provision of the Constitution required elections, generally, to be by a majority of persons voting, but can not be true where all the elective officers are named, and it is specifically provided how they shall be elected. In such case, the direction that each officer named shall be elected in a prescribed way, negatives that he shall be elected in any other way, but the negation can go no further, because ■the election to each office can be governed only by the restrictions applicable to that office. There is no provision of the Constitution requiring elections, generally, to be by a majority of persons voting, but in each article of the Constitution, certain officers "are named, and as to those there are required to be elections, but as to other officers not named, there is no requirement or restriction in this respect.
And it has • accordingly, been held, that where an act of the legislature creating a municipal corporation has been adopted by a majority vote of the people of the district, it is competent to appoint the municipal authorities as therein provided, without submitting their selection to an election by the voters of the district. The People v. Morgan, 90 Ill. 558; Cornell v. The People, 107 id. 372. And so, on like principle, that drainage commissioners may be appointed or selected otherwise than by a majority vote of the district. Huston et al. v. Clark, 112 Ill. 349; Owners of Lands v. The People, 113 id. 296; Blake v. The People, 109 id. 504.
j It must follow, that since there is no restriction upon the ¿General Assembly in regard to the mode of election of drain|age trustees, it was discretionary with it to provide for their ^election by cumulative votes.
Finally, it is said that the act is unconstitutional because, in providing the machinery for the organization of sanitary districts, it imposes upon the judge of the County Court and two of the judges of the Circuit Court duties which are incompatible with their functions and duties as judges of those courts. The provisions which are here called in question are found in section 1 of the act, and are in substance, that after the proper petition for the organization of a sanitary district is filed in the office of the county clerk, “it shall be the duty of the county judge to call to his assistance two judges of the Circuit Court, and such judges shall constitute a board of commissioners which shall have power and authority to consider the boundaries of any such proposed district, whether the same shall be described in the petition or otherwise.” It then provides for the meeting of the commissioners thus constituted, and requires that previous notice of the time and place of such meeting shall be published, and also provides that at such meeting the county judge shall preside; that all persons in the sanitary district shall have an opportunity to be heard touching the location and boundaries of the proposed district, and to make suggestions regarding the same, and that such commissioners, after hearing statements, evidence and suggestions, shall fix and determine the limits and boundaries of such proposed district, and for that purpose and to that extent may alter and amend the petition. It is then provided that after the determination by such commissioners, or a majority of them, the county judge shall submit to the legal voters of the proposed district the question of the organization and establishment, of such district, as determined by the commissioners, at an election to be held on the first Tuesday after the first Monday in November thence next ensuing.
The constitutional objection to these provisions is based upon article 3 of the Constitution, which is as follows: “The powers of the government of this State are divided into three distinct departments—the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.” It is said that if the foregoing provisions of the act imposed upon the county judge and the two circuit judges the performance of executive or ministerial duties, it is in conflict with the article of the Constitution last above cited, and that if said duties are judicial in their character, the act creates a new judicial tribunal unknown to the Constitution, and is therefore in conflict with section 1, article 6, of that instrument which exhausts all the judicial power of the State by dividing it among certain courts therein specifically enumerated. n
It should be observed that the question presented here is not whether the county judge and the two circuit judges associated with him had a constitutional right to hold the office and discharge the duties of commissioners under said act, but simply whether the acts thus performed by them under color of office can now be called in question collaterally. If direct proceedings had been instituted to test their right to act on said commission, very different questions would have been presented. But they were at least commissioners de facto, and we see no reason why the familiar rule does not apply, that the acts of officers de facto are as valid and effectual where they concern the public or the rights of third persons as though they wrere officers de jure. Sharp v. Thompson, 100 Ill. 447; Golder v. Bressler, 105 id. 419; Trumbo v. The People, 75 id. 561; Barlow v. Standford, 82 id. 298; Mapes v. The People, 69 id. 523; Pritchett v. The People, 1 Gilm. 525.
But we are not prepared to hold that the duties imposed by said act upon said judges are necessarily incompatible with their duties as judges of the Circuit and County Courts. So far as the act commits to the County Court the political function of selecting the two judges of the Circuit Court who constitute the other two members of the commission, the principle is in no respect different from that involved in a variety of other cases in which statutes imposing analogous duties upon judicial officers have been held to be constitutional. Thus the statute giving the Circuit Court of Cook county the power to appoint the commissioners for the South Park has been held to be constitutional. People v. Williams, 51 Ill. 63; People v. Morgan, 90 id. 558. So also the provisions of the drainage laws giving the County Courts the power to appoint drainage commissioners have been held valid. Moore v. The People, 106 Ill. 376; Blake v. The People, 109 id. 504; Kilgour v. Drainage Commissioners, 111 id. 342; Huston v. Clark, 112 id. 344; Owners of Lands v. The People, 113 id. 296. The same is true of those provisions of the Election Law of 1885, giving the County Court power to appoint election commissioners. People v. Hoffman, 116 Ill. 587.
Nor are the duties imposed upon said commissioners, when selected, necessarily incompatible with their duties as judges. As said by this court in discussing a similar provision of the Constitution of 1818 : “It does not mean that the legislative, executive and j udieial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was understood by the authors of our government, and those of the general and state governments, is evidenced by the Constitutions of all. In every one, there is a theoretical or practical recognition of this maxim, and at the same time a blending and admixture of different powers.” Field v. The People, 2 Scam. 79. To same effect see, Owners of Lands v. The People, and People v. Hoffman, supra.
We may refer, by way of illustration, to those provisions of our statutes which confer upon judges the power to take the acknowledgment of deeds and to solemnize marriages, powers which, though non-judicial in their nature, have never been supposed to be incompatible with the judicial office. Section 31 of article 6 of the Constitution of 1870 makes it the duty of the judges of courts of record to report, for the information of the Legislature, all such defects or omissions in the laws as their experience may suggest, and it has never been supposed that this provision was in any degree in conflict with section 3 which requires that the judicial and legislative departments shall be distinct from each other.
In this country, all corporations, whether municipal or otherwise, are created, either directly or indirectly, by legislative act, and it follows, therefore, that the creation of corporations belongs to the legislative department of government. But before the legislative power can be intelligently exercised in the creation of a municipal corporation, it becomes necessary for the legislative department, as a matter preliminary to its action, to be advised, in some mode, as to the proper territorial boundaries of the corporation which-it contemplates organizing. For this purpose it may call to its aid any agency ■ it may see fit to employ, but its doing so is no delegation of legislative power. The judges who are selected to constitute a commission for that purpose are no more vested with legislative functions, than are the judges of the several courts of record by the constitutional provision which requires them to report to the Legislature the defects and omissions they may discover in existing laws.
After giving to the record that careful examination which is demanded by the magnitude and importance of the interests involved in this and the other cases which we have considered together, we are of the opinion that in this ease, the demurrer was properly overruled, and that the judgment dismissing the information was properly entered. Said judgment will therefore be affirmed. Judgment affirmed.