People ex rel. Gleason v. Yancey

Mr. Justice Carter delivered the opinion of the court: The only question involved in this record relates to the effect of the act of the legislature approved June 21, 1895, entitled “An act to amend section 17, article 9, of an act to provide for the incorporation of cities and villages, approved April 10, 1872, in force July 1, 1872,” which is as follows: “Section 1. Be it enacted, etc.: That section 17, of article 9, of ‘An act to provide for the incorporation of cities and villages,’ approved April 10, 1872, in force July 1, 1872, be and the same is hereby amended so as to read as follows: “ ‘Section 17. When said ordinance under which said local improvement shall be ordered shall provide that such improvement shall be made by special taxation of contiguous property, the same shall be levied, assessed and collected in the way provided in the sections of this act providing for the mode of making, levying, assessing and collecting special assessments: Provided, that no special tax shall be levied or assessed upon any property to pay for any local improvement in an amount in excess of the special benefit which such property shall receive from such improvement. Such ordinance shall not be deemed conclusive of such benefit, but the question of such benefit and of the amount of such special tax shall be subject to the review and determination of the county court, and be tried in the same manner as in proceedings by special assessments.” (Laws of 1895, p. 100.) It is contended by counsel for appellee that this act virtually amends the act of April 15, 1875, entitled “An act to provide additional means for the construction of sidewalks in cities, towns and villages,” and that therefore the ordinance under which the sidewalk in question was constructed was void, as it provided for no way of ascertaining the benefits by a jury. This last named act commences with the sentence, “that, in addition to the mode now authorized by law, any city or incorporated town or village may, by ordinance, provide for the construction of sidewalks therein,” and it is contended that it is therefore really a part of article 9 of the City and Village act, and that the amendment also applies to it. The amendatory act, in its title and its enacting clause, purports to amend only section 17 of article 9, and in fact all the amendment that was made by it consisted in the addition of the proviso. The act of 1875 provides an entirely different method of levying the special tax from that provided in article 9 of the City and Village act. There is no similarity between the methods pursued. Article 9 requires the adoption of an ordinance ordering the improvement, an estimate of the cost of such improvement by commissioners appointed by the city, a petition by the city to the county court for an assessment of such cost on the property owners, an appointment of commissioners by the court to make the assessment roll, a hearing before the court on this' assessment roll, and a judgment of confirmation of the tax assessed by the court commissioners. The Sidewalk act of 1875 provides for the passage of an ordinance ordering the sidewalk, permits the property owners to construct such sidewalk within thirty days after the publication of the ordinance, and in default thereof that the same be constructed by the city at their cost, the bill for which is to be filed with the city clerk, together with a list of the property and owners; that the clerk shall prepare a special tax list against such property and its owners, ascertaining by computation the amount of special tax to be charged against each lot, and that he shall issue warrants to such officer as may be designated in the ordinance for the collection of such special tax; that such officer shall proceed to collect such warrants and make a return to the city within sixty days; that upon failure to collect such special tax a report of the delinquents shall be made by the clerk to the general officer of the county authorized to sell land for taxes, together with a copy of the ordinance, who shall then proceed to obtain judgment for such delinquent tax against such lots in the usual manner as provided by law. It will be seen that here there is no method of getting the special tax levy before a court until application is made for judgment against the delinquent lands, just as in the ordinary tax levies for general purposes, while under article 9 the tax levy is made by the court, in effect, and any objections can be heard and determined before judgment of confirmation passes, and since the amendment of 1895 a jury may be had in all cases. The two acts cannot be combined, nor can cities proceed partly under one and partly under the other. The Sidewalk act is complete in itself, and no reference is made therein to article 9. In its enforcement cities do not have to look to article 9 for directions how to proceed in constructing a sidewalk under its provisions, but the act of 1875 lays down full and complete directions how cities shall proceed in constructing sidewalks under its provisions, from the passage of the ordinance down to the collection of the tax by the county collector. In view of the fact that the proceedings under the two acts are so entirely dissimilar, it would be impossible to extend the operation of the amendment of 1895 to the Sidewalk act without thereby repealing the same by implication, as it affords no method by which a jury may be impaneled to pass upon the question of benefits. Repeals by implication are not favored, and will not be declared unless it is manifest that the legislature so intended. Article 9 prescribes minutely the course to be taken in proceedings had under its provisions. Section 16 provides the method of assessment “when the ordinance under winch said improvement is ordered to be made shall provide that such improvement shall be made by general taxation.” Section 18 provides the method of assessment “when the ordinance under which said local improvement is ordered to be made shall provide that such improvement shall be * * * made by special assessment.” Section 17 provides the method of assessment “when said ordinance under which said local improvement shall be ordered shall provide that such improvement shall be made by special taxation,” to which the amendment added the proviso “that no special tax shall be levied or assessed upon any property to pay for any local improvement in an amount in excess of the special benefit which such property shall receive from such improvement; such ordinance shall not be deemed conclusive of such benefit,” etc. It is obvious from an inspection of these sections and of the proviso added to section 17, that they all relate to an ordinance passed under the.provisions of article 9. The title of the amendatory act, and its enacting clause, as we have seen, relate exclusively to section 17 of article 9, and by all reasonable rules of construction, in view of the context, its operation must be restricted accordingly. The case might be different if the legislature had passed a general act containing the provisions of this amendatory act, but without therein amending any particular section or act. In such case this would be the enunciation of a general rule and applicable to all cases of special taxation arising thereafter. But this the legislature did not do. It in express terms amended section 17 of article 9 of the City and Village act and made no reference to the Sidewalk act. The object of the legislature in passing the Sidewalk act of 1875 was doubtless to provide a less cumbersome and expensive method of constructing sidewalks by special taxation than that laid down in article 9 of the City and Village act, and affording each lot owner an opportunity to construct such walk in front of his own premises. This act has been held constitutional in White v. People, 94 Ill. 604. In Craw v. Village of Tolono, 96 Ill. 255, this court said (p. 259): “Serious apprehensions are expressed lest, under the power to impose special taxation upon contiguous property for local improvements, cities may, in case of very expensive improvements, abuse the power, and, under the form of its exercise, practically confiscate private property to public use. So long as it is confined to sidewalks there is little cause for such apprehension. It will be time enough to consider the question when a case of oppression occurs. Meanwhile, it may not be amiss to suggest that all this must be done, if at all, by ordinance, and it must be remembered that ordinances, to be valid, must be reasonable,—not unfair or oppressive,—and must spring from an honest exercise of legislative discretion.” In Halves v. City of Chicago, 158 Ill. 653, we held the sidewalk ordinance void, as being unreasonable, unjust and oppressive. No complaint is made that the ordinance under which this sidewalk was constructed was unreasonable, unjust and oppressive. The whole contention relates" to the effect of the amendment of 1895. As we have seen, this amendment does not apply to the Sidewalk act of 1875. The judgment of the county court will be reversed and the cause remanded. Reversed and remanded.