People ex rel. Olander v. Peoria & Pekin Union Railway Co.

Mr. Justice Scott

delivered the opinion of the court:

By section 13 of chapter 121, Hurd’s Revised Statutes of 1905, highway commissioners are authorized to levy not to exceed sixty cents on each $100 of taxables for road and bridge purposes. By section 14 of that chapter, if in the opinion of the commissioners a greater levy is needed, in view of some contingency, they may, upon certifying the same to the board of town auditors and the assessor, with the consent of a majority of the body so constituted, given in writing, make an additional levy of any sum not exceeding forty cents on each $100 of the taxable property of the town.

It is contended by appellant that the contingency mentioned in the certificate of the highway commissioners is not such a contingency as is contemplated by section 14, supra. A reference to the certificate shows that the additional levy was deemed necessary by the commissioners to meet the expense, first, of providing protection for the piers of the bridge in question and of placing lights on the bridge, in accordance with the requirements of the government of the United States; and second, of providing for the protection of the approaches to the bridge. We have so recently and so frequently had occasion to determine the significance of the word “contingency,” as used in section 14, that it is unnecessary to refer to the decisions on that subject.

This is a bridge across a navigable stream. The government of the United States, in 1904 and in 1905, prior to September of that year, required that structures be built in the river to protect the piers of the bridge and that lights be placed upon the bridge, and this requirement was referred to in the certificate. The expense necessitated thereby was not one of the ordinary current expenses of the town. The requirement imposed a duty which did not fall within the scope of the ordinary obligations of the town. We think that within the meaning of the statute a contingency existed, and was shown by the certificate, in so far as this work required by the Federal government was concerned, to the extent that the burden of doing that work rested upon the town. As to the protection for the approaches of the bridge, which does not seem to have been required by the national government, we think the certificate fails to show the existence of a contingency. It merely states that in view of the necessity for providing for the protection of the approaches a contingency has arisen. The necessity of protecting the approaches of a bridge may or may not result from a contingency. If it is occasioned by such high water in the stream as occurs occasionally every year, or by the ordinary wash from rainfall, or other like cause, the protection must be provided from the funds raised by taxes levied under section 13. If the necessity for the protection resulted from a change in the course of the stream, or from some other unexpected occurrence, a contingency would exist which would warrant the levy of a tax under section 14. As to the protection for the approaches, it cannot be determined from the certificate whether a contingency existed, and the tax levied to provide that protection is therefore illegal.

The bridge connects the right bank of the river in Peoria township, Peoria county, with the left bank of the river in Fon du Lac township, Tazewell county. The real estate upon which it rests was acquired by the highway commissioners of the town of Peoria by purchase and was conveyed to the town by deed. It is agreed that the commissioners acquired this real estate and constructed this bridge by lawful authority. After the bridge was constructed and more than one year before the tax was levied the village of Averyville was organized. That village includes all that part of the bridge and all that part of the approach thereto which are located in Peoria township. After the village was organized the commissioners of highways were without power to exercise any control or supervision over that part of the bridg'e and approach located within the village or over any of the public ways within the village, and were without authority to levy any tax to be expended upon that portion of the bridge and approach or upon any of the highways or streets within the village, except it be considered that taxes levied by them which, upon collection, were payable to the village authorities were levied for the purpose of being used upon.the thoroughfares of the village. It was the duty of the village to keep all the streets and highways within its confines, including that portion of the bridge and approach within its boundaries, in a reasonably safe condition for the use of the public. (Village of Marseilles v. Howland, 124 Ill. 547; Shields v. Ross, 158 id. 214; People v. Chicago and Alton Railroad Co. 172 id. 71.) This duty includes the construction of any protection to the piers and the placing of any lights upon the bridge that could properly be required by the government of the United States. The necessity for constructing such protection to the piers and providing such lights within the village of Averyville did not constitute a contingency which warranted the levy of the additional tax by the highway commissioners. Had the village of Averyville not been organized, however, the right and duty of the commissioners to maintain this bridge is not questioned. If they possessed that right as to the entire bridge prior to the organization of the village it would seem that the inclusion of a portion of the bridge within the village would not change the right or obligation of the commissioners so far as that portion of the. bridge remaining without the village is concerned. We are of the opinion that a contingency existed which warranted the commissioners in levying an additional tax to protect the piers of, and place lights upon, that portion of the bridge without the village of Averyville.

The additional tax levied was forty cents on the $100. The amount of tax extended against all the property in the town by reason of this levy was $44,061.53. The estimated cost of building the protection to the piers was $6155.25. The record does not disclose the cost, or the probable cost, of furnishing and placing the lights or of constructing the protection to the bridge approaches, but it is entirely apparent that the tax extended was several times as great as was necessary to pay all the expenses contemplated by the certificate made by the commissioners for the purpose of showing the existence of a contingency. Appellant contends that in any event the highway commissioners were not authorized to levy any more money than would be sufficient to meet the expenditures necessarily occasioned by the contingency. The city of Peoria, at the time this tax was levied, was a city of more than 35,000 inhabitants. The last proviso of section j6 of chapter 121, supra, requires commissioners of highways in towns in which there is a city of 35,000 inhabitants or upwards, to pay to the treasurer of that city all the taxes levied upon and collected from property within the limits of süch city, under sections 13 and 14. Of the tax extended by virtue of the additional levy of forty cents, $43,028.73 was extended against property within the city of Peoria and $1032.80 was extended against property without the city of Peoria. The statute contains no provision expressly requiring that any money raised to meet a contingency, if paid to the city treasurer, shall be expended by the city for the purpose of assisting in meeting the contingency, and appellee insists that section 14 should not be construed as preventing the commissioners, in the event of a contingency, levying any sum by virtue of section 14 except such as is sufficient to pay the expenses occasioned by the contingency. Appellee calls our attention to the fact that in section 14, as it existed prior to July 1, 1903, there was an express prohibition against the use of any funds raised by taxation under that section for any purpose except the purpose specified in the consent, in writing, given by the auditors and the assessor, indicating the particular purpose or purposes to which the additional levy was to be applied. That section was amended in 1903 so as to read as at present. The prohibition just referred to was then omitted, and emphasis is placed upon the fact of that omission and upon the fact that, as the statute now reads, if the contingency exists an additional levy may be made of “any sum not exceeding forty cents on the $100,” upon proper permission being obtained. The additional levy under the statute as it existed prior to July 1, 1903, might be made to meet some usual or ordinary expense of the town, as grading a particular highway or repairing a particular bridge. The question whether or not the additional levy was to be made depended not at all upon the existence of any emergency. Under the present statute the only money that can be used by the highway commissioners for the current expenses of the town is that levied under section 13. In the absence of a contingency no tax whatever can be levied except that levied by virtue of the section last mentioned and such as may be levied to pay damages under section 15 of chapter 121, supra. If, however, a contingency exists then a greater levy may be made. We think it apparent, notwithstanding the omission of the prohibition in question and notwithstanding the language last quoted from the present law, that a construction cannot be placed upon this statute which would permit commissioners to levy a tax under section 14 over and above the amount necessary to meet the contingency. The existence of a contingency warrants the levy of no tax except that necessitated by the emergency.

Appellant further insists that inasmuch as all the tax raised by the levy made under section 14 must be paid to the city of Peoria if the last proviso to section 16, supra, be given literal effect, and inasmuch as the statute does not expressly require that the city contribute anything to the expense necessitated by a contingency arising without the city, the burden of meeting the contingency in question falls upon the property of the town lying outside the city, and that the statute, in effect, establishes two jurisdictions for the purpose of taxation by the highway commissioners,— one within the city of Peoria and the other without the city of Peoria,—and that a tax levied to meet a contingency without the city of Peoria should therefore be levied only upon the property without that city. Section 13 provides for a levy of sixty cents on the $100 upon the “property of the town.” Section 13 is based upon the hypothesis that “a greater levy is needed in view of some contingency,” in which event an additional levy may be made of any sum not exceeding forty cents “on the $100 of the taxable property of the town.” If that whole sum, when needed to meet a contingency, may be levied upon property without the city, it is manifest no limit is fixed for the rate at which such a tax may be extended in towns in which there is located a city with a population of 35,000 or upwards, where the emergency arises outside the city. Forty cents on the $100 in Peoria township produces $44,061.53. To levy this entire sum upon the property without the city would make a tax so burdensome that it is apparent the legislature could not have intended to authorize its imposition. The tax to meet a contingency must be levied upon all the property within the town, without regard to whether or not there is a city of 35,000 population in that town.

It is finally contended by appellant that as the money raised under section 14 cannot be used for general road and bridge purposes, and as that portion thereof which is raised within the city of Peoria, according to the language of the last proviso to section 16, supra, must be paid to the city of Peoria, and as the city is not required to expend it in assi sting to bear the burden occasioned by the contingency, it must pass into the general fund of the city and be used for ordinary corporate purposes of the city. So construing the statute, the highway commissioners are empowered, it is said, to levy a tax upon property within the city which must be paid into the city treasury for general city purposes, and it is urged that a statute conferring such a power upon the commissioners is in violation of sections 9 and 10 of article 9 of the constitution. We think it unnecessary to decide this question in this case. In Peoria and Pekin Union Railway Co. v. People, 144 Ill. 458, we determined, in a case involving a tax levied by the highway commissioners under section 13, that the proviso to section 16 above referred to was constitutional so far as the tax there involved was concerned. Section 14, as we have above indicated, authorizes the commissioners to levy a tax to meet a contingency upon all the property within the town, the amount levied to be sufficient only to pay the expenses occasioned by the emergency. Such a statute is valid. The question whether or not the legislature may properly require the money raised for such purpose within the city to be paid, in whole or in part, into the treasury of that city is not presented by this record. Whether the last proviso of section 16, supra, can be enforced with reference to a tax levied to meet a contingency arising outside the city we do not now determine. The only portion of the tax levied under section 14, supra, which is valid, is such portion thereof as was sufficient, in amount, to supply the necessary protection for the piers of that part of the bridge which is without the villáge of Averyville and to provide the lights for the same part of the bridge. This tax, in such amount, should have been extended against all the property in the town, including that within the city. When the sum necessary is determined the rate can be ascertained by computation, and when the rate is fixed the amount for which the appellant is liable can be readily ascertained. When the case is re-docketed in the county court the necessary proof can be taken, and, upgn the amount of appellant’s liability being fixed in accordance with the law as stated in this opinion, a judgment therefor should be rendered and an order made requiring the county collector to pay over to appellant the balance of the money in his hands which was deposited by appellant as a condition precedent to taking this appeal.

The judgment of the county court will be reversed and the cause remanded to that court for further proceedings consistent with the views herein above expressed.

Reversed and remanded.