Dutton v. City of Aurora

Mr, Chief Justice Scholfield delivered the opinion of the Court: This was a hill in equity, by a tax-payer of the city of Aurora, to enjoin the corporate authorities of that-city from issuing its bonds to the amount of $100,000,.for the purpose of erecting and maintaining a system of water works. The grounds upon which the injunction is prayed are, first, that the city is prohibited from borrowing money exceeding $5000 in any one year; and second, that the ordinance authorizing the issue of the bonds provides that an annual tax of three mills on the dollar shall be levied for the payment of principal and interest on the borrowed money, while section 1 of chapter 2 of an amendment to the original charter of the city of Aurora, approved February 16, 1861, provides,- “the common council shall have the power to levy and collect taxes upon the real and personal property within the limits of said city, not exceeding one and one-half per cent upon the assessed value thereof, to pay the general contingent and other expenses of said city;” and if an additional tax of three mills on the dollar, should be levied- with the tax levy of 1883, it would have resulted in a levy of more than one and one-half percent upon the assessed value of the real and personal property for that year. It was stipulated between the parties, on the hearing, that an additional tax of three mills on the dollar, in 1883, would have made a levy exceeding one and one-half per cent upon the assessed value of the real and personal property for that year, The court below, on final hearing, decreed that the bill be dismissed. Subdivision 37, of section 4, of chapter 4, of the special charter under which the city of Aurora is incorporated, provides that the city authorities shall have power “to borrow money, on the credit of the city, not exceeding $5000 in any one year, and pledge the revenues of the city for its payment, and issue bonds therefor. ” And if this is the only authority for issuing the bonds, it is very clear the ordinance is illegal, because in excess of any authority conferred upon the city council, and the court erred in' dismissing the bill. This question turns upon whether an act entitled “An act authorizing cities, incorporated towns and villages to construct and maintain water works, approved and in force April 15, 1873, ” applies to cities incorporated under special charters, or only to cities incorporated under the general law. We think it applies to cities incorporated under special charters, as well as to those incorporated under the general law, for these reasons: First—The language of the act is as broad and comprehensive in its terms as it is possible to make it. It is, that “all cities, incorporated. towns and villages in this State, be and are hereby authorized, ” etc. Second—If the act shall be held to apply only to cities, etc., incorporated under the general law, the second section is entirely superfluous, (which is never to be assumed,) since precisely the same powers are conferred upon those cities by section 1, article 10, of the general law in relation to “Cities, Villages and Towns.” Rev. Stat. 1874, p. 240. Third—The seventh section of the act is in these words: “The provisions of this act shall not apply to cities, towns or villages, in which water works are now managed or controlled by a board pf public works. ” If it had been intended to limit it to cities incorporated under the general law, here would have been the proper place to state it. By this exception the act shall not apply to cities, etc., in which water works are now managed or controlled by a board of public works, necessarily, by the language employed, whether such cities are incorporated under special charters or under the general law, and, by implication, declaring that it does apply to all other cities, whether incorporated under special charters or under the general law. “The introduction of the exemption is necessarily exclusive of all other independent, extrinsic exceptions.” Potter’s Dwarris on Statutes, 221. Fourth—The title to the act indicates that it is a general law, “applicable to all cities,” etc., in the State, and does not profess that it is an amendment or supplement to the general law. The first section of this act empowers “all cities * * * in this State * * * to provide for a supply of water for the purposes of fire protection and for the use of the inhabitants of such cities, * * * by the erection, construction and maintaining of a system of water works.” The second section provides that “such cities, incorporated towns and villages may borrow money and levy and collect a general tax, in the same manner as other municipal taxes may be levied and collected, for the erection, construction and maintaining of such water works, and appropriate money for the same. ” The language leaves the municipal authorities unrestricted as to the character and cost of the means whereby the supply of water shall' be provided, and authorizes them to borrow money, etc., for that purpose,—i. e., to the extent that it shall be necessary in order to make the contemplated improvement. The propositions are so fundamental and familiar that it is not deemed necessary to cite authorities to prove that where authority is given to do a thing, it carries with it, by implication, authority to -use the necessary means by which it can be done; and that where the provisions of a former and a later statute are inconsistent and repugnant in respect of the same subject matter, the latter is a repeal of the former to the extent of the inconsistency or repugnancy. There was no necessity for a repealing clause in this general law, because provisions in special charters otherwise limiting the power to borrow money, levy taxes, etc., were not intended to be affected, but in all other instances of the contracting of indebtedness it was intended they should remain in force, just as they then were. Having the power to contract the indebtedness, and to issue the bonds to an amount deemed necessary to produce the desired supply of water, the limitation in the special charter does not affect it. Having power to borrow money, the power to issue bonds therefor results as a necessary incident, and the circuit court properly refused to enjoin the issuing of the bonds. The ordinance providing for the levying and collecting of an annual tax for the payment of these bonds is not shown to violate the restriction in section 12, of article 9, of the oonstitution, which prohibits the incurring of debts beyond five per centum on the value of the taxable property of the municipality, and in other respects it strictly conforms to the requirements of that section. The limitation in the special city charter as to the rate of taxation, is a limitation upon the municipal authority, and not upon-the General Assembly, as is the constitutional limitation referred to; and so when the General Assembly authorized the incurring of a debt, to meet the annual interest upon which would require a greater levy than the amount specified in the special charter as the limit, the law authorizing the incurring of the debt is to be regarded as, to that extent, a repeal of the limitation in the special city charter. We regard, moreover, the act entitled “An act in relation to the levy and collection of taxes for sewerage and water works in cities of this State that may have established a system of sewerage and water works for such city, and to repeal an act therein named, and to authorize the cities, villages and incorporated towns of this State to levy and collect taxes to pay for water and light, ” approved and in force June 21, 1883, (Laws of 1883, page 68,) as conclusive as against any doubt that otherwise might have remained in this respect. The judgment is affirmed. Judgment affirmed.