People ex rel. Kern v. Nelson

Mr. Justice Magruder delivered the opinion of the court: This is an appeal from a judgment of the county court, sustaining an objection made by appellees to the county collector’s application for judgment against the land of appellees as delinquent for non-payment of the fifth installment of a special assessment made by the village of Washington Heights under an ordinance passed by that village on March 18, 1889, before its annexation to Chicago, for the laying of water pipes in certain streets. The judgment confirming the assessment roll had been rendered by default. The objection made to the entry of judgment is, that the county court had no jurisdiction to enter the judgment of confirmation by reason of the void character of the ordinance on which the assessment proceeding was based. The ordinance provides for the collection of the assessment in ten equal annual installments, and purports to have been passed under and by virtue of an act of the legislature of Illinois, approved March 17, 1874, entitled “An. act to provide for the laying of water supply pipe by bonds and special assessment payable in installments.” It is claimed that, before the passage of the ordinance on March 18, 1889, the act of March, 1874, had been repealed by an act of the legislature approved on April 19, 1887, entitled “An act to amend article 9 of an act . entitled ‘An act to provide for the incorporation of cities and villages,’ approved April 10, 1872, in force July 1, 1872, by adding thereto the following sections.” The sections of the act of 1887 are numbered from 55 to 68 inclusive, the last section of the original article 9 being section 54. (Act of 1874, 1 Starr & Cur. Ann. Stat. page 507; Act of 1887, Laws of Ill. of 1887, page 104). It is conceded, that, if the act of 1874 was repealed by the act of 1887, the ordinance was void, and there was no jurisdiction in the county court to render the judgment of confirmation. Therefore, the only question in the case is, whether the later act operated as a repeal of the earlier one. In order to determine this question, it will be necessary to notice the main provisions of the two acts and compare them with each other. The act of 1874 has reference to cases where the corporate authorities of any city, town or village shall provide by ordinance for the laying of water supply pipes to be paid for by special assessment to be made under the provisions of article 9 of the City and Village act of April 10,1872. The act of 1887 has reference to any special assessment for any local improvement in any city, incorporated town or village. In article 9 of the original City and Village act of 1872, there was no provision for the payment of assessments by installments. The act of 1874 provides for the payment of special assessments for water-pipes in annual installments, not exceeding ten in number. The subsequent act of 1887 provides for the payment of any special assessment for any local improvement in five installments, except assessments not exceeding §15,000.00 in cities containing a population of 50,000 or„ more. The first noticeable difference between the two acts is, that the act of 1874 applies only to a particular class of local improvements towit: the laying of water pipes, while the act of 1887 extends the permission to collect in installments to all local improvements, which necessarily include the laying of water pipes. The act of 1874 provides, that the payment by installments of the estimated cost of the improvement may, in the discretion of the corporate authorities, be provided for in the original ordinance, “or by an ordinance to be adopted at any time prior to the issuance of the warrant to the collector-for the collection of such assessment.” But, by the terms of the act of 1887, the provision for payment by installments must be made in the ordinance providing for the improvement; but, in all cases where the special assessment shall have been made but not confirmed, the municipality may provide by ordinance for the collection of the assessment by installments. In other words, the act of 1874 permits an ordinance for payment in installments to be passed at any time before the warrant is issued to the collector for the collection of the assessment, while the act of 1887 requires the ordinance providing for the payment of the assessment in installments to be passed before the assessment is confirmed. Indeed, the commissioners are required to designate upon the assessment roll the amount of each installment. The act of 1874 provides, that the portion of the estimated cost of the improvement apportioned as public benefit may be paid by the issuance of bonds payable within twenty years, or by general taxation in accordance with said article 9, and that the portion of the estimated cost assessed against the property specially benefited shall be payable in such annual installments, not exceeding 10 in number, as may be prescribed in the ordinance. The act of 1887 provides, that the amount of the special assessment may be divided into installments, the first of which shall not exceed 25 per cent of the total assessment, and that the remainder shall be divided into four equal annual installments payable annually. It will be noticed that the later act says nothing about bonds; but bonds are mentioned in the earlier act merely as a mode of providing for the public benefits; and the part apportioned as private benefits is the only part divided into installments. By the act of 1887, however, the whole assessment, including the part apportioned as public benefit, may be divided into installments. It is manifest, that the two acts dispose differently of the portion of the assessment set apart for public benefit, the one by the issuance of bonds, the other by including it in the installments. By the act of 1874, the installments, in which the portion of the cost assessed upon property specially benefited is made payable, are such annual installments, not exceeding ten in number, as the ordinance may prescribe. The municipality is thus invested with a discretion in the matter of fixing the number and amounts of the installments, subject to the condition that the number is not greater than ten. But by the act of 1887, the number of installments, into which the whole assessment may be divided, is limited to five, “the first of which shall not exceed the sum of 25 per cent of the total of said assessment.” By the act of 1874, the first installment of the amount assessed upon property specially benefited shall be payable immediately upon the issuance by the clerk of his warrant to the collector, and the subsequent installments shall be payable annually thereafter. By the act of 1887, the first installment shall be due and payable from and after the confirmation of the assessment, and the four others shall be payable annually thereafter, “and collected in the same manner that other assessments are now collected.” By the earlier act, the rate of interest upon the deferred installments is fixed at such rate as shall be prescribed in the ordinance not exceeding 10 per cent per annum, while the later act directs, that the “four last named installments shall bear interest at the rate of six per cent per annum from and after the first day of ■ July next succeeding the confirmation of the assessment if confirmation is had before the first day of March, but, if not, then interest to begin from the first day of July in the following year after the confirmation.” It thus appears from an examination and comparison of the two acts, that every provision of the act of 1874 is met by a corresponding and repugnant provision in the act of 1887. In addition to this, the latter act contains additional provisions, not found in the former, relating-to the stoppage of interest on installments by payment before maturity; fixing a maximum for the first installment ; designating the mode of making the assessment roll; specifying the requisites of the collector’s notice; fixing the extent and scope of the order of confirmation ; indicating the contents of the collector’s warrant; prescribing the method and form of paying for the improvement from the fund collected; restricting vouchers to the particular fund; providing for rebates of surplus and for payments in case of the condemnation of property. In the act of 1887 there is no express repeal of the act of 1874, and repeals by implication are not favored in the law. But, if two statutes are clearly repugnant to each other, the one last enacted operates as a repeal of the former; and a subsequent statute, which revises the whole subject of a former one, and is intended as a substitute for it, operates as a repeal of the former, although there are no express words of repeal.' (Culver v. Third Nat. Bank, 64 Ill. 528; Andrews v. People, 75 id. 605). The objects of the two acts are the same, namely, the collection of special assessments by installments. The subject of the first act, a local improvement by laying water pipes, is included in the broader subject of the second act, to wit: any local improvement. The provisions of the two acts, as above set forth, are irreconcilable, an’d the later act revises the whole subject of the older one, and was evidently intended as a substitute for it. It is true, as a general rule, that a general affirmative statute does not repeal a prior particular statute,.but this rule does not apply where there is such an irreconcilable inconsistency between the two, as indicates an intent of the legislature to repeal. Nor does the rule apply where negative words are used. (Sedgwick on Cons, of Stat.—2d ed.—page 100, note a). Affirmative language may be so strong as to imply a negative. (Potter’s Dwarris on Stat. p. 68; 1 Kent’s Com. marg. p. 467, note b; Dis. Town of City of Dubuque v. City of Dubuque, 7 Iowa, 262). The act of 1887 says, that the first installment “shall not exceed the sum of 25 per cent of the total of said assessment,” which is inconsistent with the provision in the act of 1874, that the portion of the cost assessed upon the property specially benefited shall be “payable' in such annual installments, not exceeding ten in number as may in such ordinance be prescribed.” The provision in the act of 1887 that, when the confirmation is not before March 1, the remaining installments “shall not bear interest until the first day of July in the following year after said confirmation” is inconsistent with the provision in the act of 1874 making the deferred installments payable with interest annually after the issuance of the warrant to the collector. A study of the act of 1887 will show, that, in addition to these prohibitions, it also contains affirmative terms of a positive and mandatory character, which contradict corresponding provisions in the former act. There is no doubt, that the act of 1887 introduced an entirely new set of rules and directions as to the subject matter embraced in both acts concerning the collection of assessments by installments.. If an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. (Potter’s Dwarris on Stat. p. 72; Hardeman v. Bowen, 39 N. Y. 196). The provision in the act of 1887, that the sections of the act shall not apply in cities containing a population of 50,000 or more, except in cases where the special assessment exceeds in the aggregate the sum of $15,000.00, merely indicates that the plan of collections by installments shall not prevail in large cities where the amount of the assessment is small. In such cities, assessments not greater than $15,000 are payable at one time and in one amount, and not by installments. We do not think, that this provision indicates an intention on the part of the legislature to leave the act of 1874 in force. When two inconsistent acts are passed at different times, and the provisions of both cannot be carried into effect, the later law must prevail, and the first must give way. (Devine v. Comrs. of Cook County, 84 Ill. 590). We are of the opinion, that the act of 1887 operated as a repeal of the act of 1874, and that the ordinance of March 18,1889, upon which the assessment here involved is based, was void. (Village of Morgan Park v. Gahan, 35 Ill. App. 646). The judgment of the county court is accordingly affirmed. Judgment affirmed.