one township, and wherein the commissioners | made by them in subdistrict No. 10, it must of highways are ex officio drainage commis- necessarily be by virtue of power conferred sioners, we do not regard as well grounded. by some section of the statute that is applicaThe section is found among those which are ble only to special drainage districts. The general in their character, and applicable claim made is that the bonds are authorized alike to township, union, and special drain- by the proviso contained in section 63. That age districts; and from the position in the proviso is as follows: "Provided, however, section in the act, and from its subject-mat-if, in the judgment of the commissioners, the ter, there is ground for the conclusion it was intended to be so applicable. But whether this be the correct view or not is unimportant to the present inquiry. The latter part of section 52 of the act provides that the commissioners of a special drainage district "shall be the corporate authorities thereof, and shall be a body politic and corporate, with like powers as herein conferred upon other drainage commissioners, either by this act or other laws of this state." Regardless of what the powers of the commissioners of a special drainage district would be without this latter provision, it is very plain therefrom that the commissioners of the "Lake Fork Special Drainage District in the Counties of Piatt, Champaign, and Douglas, and State of Illinois," had ample authority to form subdistricts. The purpose for which drainage commissioners are given authority to form subdistricts is declared by the statute to be that of making assessments of benefits for the work to be done in said subdistricts. The only powers that are expressly granted to the commissioners, in respect to subdistricts that are at their option formed, are to make the division, and then to classify the lands therein, and make assessments as in original districts; and the statute provides that "the funds arising therefrom shall be kept as a separate and distinct fund, to be used in the subdistrict from which it was collected." | From these powers there would be no implied authority vested in the commissioners to issue bonds for an assessment, or part of an assessment, made by them upon the lands and property in the subdistrict. We have seen that the section is alike applicable to township, union, and special districts, and while, by the statute, union districts are given like powers with township districts, and special districts are granted all the powers conferred upon either township or main districts, yet the converse of this is not true, and township and union districts are nowhere invested with all the powers that are granted to special districts. Nor is power anywhere in the act, either expressly or by implication, vested in the commissioners of either township or union districts to issue bonds or notes either for unpaid assessments or installments thereof, or for any part of any such assessment or installment, either for district or subdistricts, or to issue any notes or bonds whatever, for any purpose, or under any circumstances. If, then, the commissioners of Lake Fork Special Drainage District in the Counties of Piatt, Champaign, and Douglas, and State of Illinois, had authority to issue bonds for any portion of the unpaid assessment for benefits payment of said tax, or any installment or are made in original districts. The provis-quired to be shown are "the date, amount, ion made in section 63 is for the issuing of number, date of maturity, rate of interest, the "notes or bonds of said district," and the time when such interest is payable, and place presumption must be that if it had been the of payment of the principal and interest of legislative intention that notes or bonds might such bond, under what act and by what disbe executed by or on behalf of a subdistrict, trict issued, and the name of the person or or for an unpaid subdistrict assessment, or a persons presenting the same for registrapart thereof, such intention would have been tion." If it had been within the legislative clearly indicated. It is expressly stated in contemplation that bonds would be issued section 43 that the subdistrict shall not have under the act by a subdistrict, or for or on any claim upon the funds of the main dis- behalf of a subdistrict, it would seem it trict for its local use, and it would be an an- would have been required that the registration omaly that bonds of the entire original dis- in the office of the auditor should show such trict should be issued for the indebtedness of subdistrict. So, also, under section 68, the a subdistrict. The subdistricts organized at auditor's certificate sent to the county clerk the option of the commissioners of the main shows the amount necessary to pay the indistrict are not independent bodies politic terest, or interest and principal, "of such and corporate, but are dependent upon the particular district," which is to be levied original organization, and the corporate au- "within the limits of such district," and this thorities of the main district act for the sub-amount is by the district clerk to be appordistricts; and, had it been intended that ne- tioned "in such district," and a pro rata share gotiable paper should be based upon the un- extended as a tax against "the lands and paid assessments of a subdistrict, it is but property in the district." There is no sugreasonable to suppose the law would have in-gestion whatever in the section of a subdisdicated the force and effect of such paper, trict. In section 70 the references are to and the manner in which it should be exe- "the lands and property in said district," to cuted, and would not have directed that the the "notes or bonds of the district," and bonds or notes of the "district" should be "bonds of the district," without any mengiven therefor. Were the subdistrict in a tion of subdistrict, or subdistrict bonds. In township or union district, no bonds or notes section 72 the "notes or bonds of the district" could be issued for unpaid taxes for benefits, are in like manner spoken of, and no menand, as the provisions found in the act in re- tion made of subdistricts, or subdistrict gard to subdistricts are all contained in sec-bonds. It is hardly reasonable to suppose tion 43, and are alike applicable to all subdis- that if it had been contemplated and intendtricts organized by commissioners of main ed that bonds might be issued by or on bedistricts, whether township, union, or spe- half of a subdistrict, or for a subdistrict ascial districts, it is to be presumed, in the ab- sessment, that there would have been such sence of a clear indication of a legislative in- an entire omission in each and every one of tention otherwise, that bonds or notes can- these numerous sections relating to drainage not be issued for unpaid assessments of the bonds of any reference whatever to subdissubdistricts; it being formed by the commis-tricts, or subdistrict bonds. Neither townsioners of a special drainage district. Va-ship drainage districts nor union drainage rious other sections of the statute which fol- districts are under the law given the privilow this section 63 tend to show that, while it was contemplated that bonds or notes would be issued based on district assessments, yet that bonds or notes for subdistrict assessments were not in contemplation. Section 64 provides for funding notes or bonds issued for an assessment, and executing new notes or bonds, but, while the "district" is mentioned, there is no reference therein to a "subdistrict." Section 65 provides for the issuing of bonds for unpaid assessments upon the petition of a majority of the owners of land in special drainage districts, but it makes no mention of subdistricts. Section 66 makes provision for the keeping of a record by the In section 78 is found another reason why corporate authorities of the district of all the provision in section 63 for the issuing of bonds issued, and designates what matters of distinct bonds for assessments in special information shall appear upon the face of drainage districts should not be held to apply such record, but it contains no allusions to to this subdistrict No. 10. A subdistrict may subdistricts, or subdistrict assessments. Sec- be formed in a main district, either by the tion 67 makes it the duty of the auditor of act of the commissioners or "by the owners public accounts to register upon presenta- of land, * * * in the manner provided tion, in a book kept for that purpose, all in the act for the organization of main disbonds issued under the provisions of the act, tricts." If this subdistrict had been organand it specifically points out what such reg-ized "by the owners of land," thereby giving istration shall show. The matters so re-it an independent, corporate existence, and lege of issuing bonds for unpaid assessments, or any part thereof, even where such assessments are made for the whole district. The general assembly saw fit to confine that privilege to special drainage districts. Subdistricts, even when they are found in a special drainage district that includes lands in three or more counties, may be, and frequently are, very small in area, and include the property of but a few land-owners; and it would seem the policy of the law which would deny the right of issuing negotiable bonds and paper in township and union districts would also deny such right to all mere subdistricts. as a separate and distinct fund, to be used in the subdistrict from which it was collected," and that the formation of subdistricts shall not give to any such subdistrict "any claim upon the funds of the main district for its local use." We cannot accede to the suggestions made by petitioners, that the promises to pay made in the bonds and coupons are simply promises to pay by or with the unpaid assessment, in subdistrict No. 10, and that the language, "for the payment of which principal sum, and the interest coupons attached, the faith of said Lake Fork Special Drainage District is hereby irrevocably pledged," is simply a pledge by the commissioners that the unpaid and postponed assessment will be used in the payment of the bonds at their maturity, and that the corporate authorities will exercise whatever it embraced within itself lands in three or more townships, it might, possibly, although a subdistrict, be regarded as something more than a mere subdistrict, and as a special district, within the purview of the act, since it would have had all the essential attributes of a main special district; but it was not formed by the act of the land-owner, has no autonomy of its own, and is not in three towns. Not only is the power to issue bonds a special power, granted to a particular class of districts, and by necessary implication withheld from all other districts, but in the latter part of said section 78 it is enacted that "the special provisions of this act, for their own class of districts, shall apply only to such districts." As we understand this provision, it very plainly excludes the idea that the special provision made for special drainage district bonds is applicable to sub-power is given to, or duty imposed on, them districts, under section 43, without such subdistricts are autonomous and complete special drainage districts within themselves. by law towards the payment of the interest on such bonds, as the same accrues. The contracts attempted to be made by the Lake Fork Special Drainage District are plain and unambiguous, and the language used in the bonds and coupons will not bear the construction sought to be placed upon it. The drainage district had no power, under the law, to issue bonds binding itself for the payment of an assessment made in one of its subdistricts for work done in and solely for the local benefit of such subdistrict. Even if bonds for postponed and unpaid assessments could lawfully be issued by or on behalf of a subdistrict organized by the commissioners of a special drainage district, yet there would be a serious and fatal objection to the bonds here in question. These bonds were issued by the Lake Fork Special Drainage District in the Counties of Piatt, Champaign, and Douglas, and State of Illinois, and contain absolute and positive prom- Our conclusions upon the case presented by ises on the part of said Lake Fork Special the record are that, while the commissioners Drainage District to pay the several sums of of Lake Fork Special Drainage District had money mentioned in them respectively, and power, under the statute, to form subdisby the terms of the contract the faith of said tricts, yet that they had no lawful authority Lake Fork Special Drainage District is irrev- to issue bonds for an unpaid assessment made ocably pledged for the payment of the prin- in one of said subdistricts, or for any part cipal sums named in said bonds, and the in- thereof; and that, even if they could be held terest coupons attached. It is true that in to be vested with such authority, the bonds the body of the bonds the statement is made here involved would not be legal, and such that they are "issued on the second assess- as they could lawfully issue. For the reament of subdistrict No. 10 of said Lake Fork sons herein stated, the demurrer to the anspecial drainage district," and also the fur-swer of the auditor of public accounts is overther statement that, for payment of the bonds ruled, a writ of mandamus is denied, and and coupons "together," with the faith of the the petition dismissed, at the cost of the pemain district is pledged "the unpaid assess-titioners. ment above described in subdistrict No. 10, becoming due September 1st, 1892, upon which this bond and coupons attached are based, and are constituted a special lien for the payment thereof." They do not purport, however, to be the bonds of the subdistrict, or to be payable only out of the proceeds of the unpaid and postponed assessment of the subdistrict, but the promise of the main district to pay is direct and unconditional. In the coupons attached there is no reference whatever to either the subdistrict or any assessment, and all that is found in them are simple and unqualified promises on the part of the Lake Fork Special Drainage District to pay the bearer, at the place and times mentioned therein, the sums of interest money specified in them respectively. Section 43 of the Drainage Act provides, as we have heretofore stated, that the funds arising from assessments made in subdistricts "shall be kept (130 III. 247) CITY OF LAKE VIEW v. TATE.1 (Supreme Court of Illinois. Nov. 26, 1889.) MUNICIPAL CORPORATIONS-ORDINANCES. Where two competing lines of railway pass through different parts of a city, and there is no material difference between the character of such parts, an ordinance limiting the speed of trains in only one part is void, as being unreasonable. Appeal from appellate court, first district. Jonas Hutchinson, for appellant. Walker & Eddy, for appellee. BAILEY, J. This was a suit brought by the city of Lake View against H. Tate, before a justice of the peace, to recover the penalty imposed by an ordinance of said city regulating the speed of railway trains. The trial before the justice of the peace resulted 1Reported by Louis Boisot, Jr., of the Chicago bar. in a judgment in favor of the city for $200, | North Clark street intersects with Ashland and costs. On appeal to the criminal court avenue, shall be, and the same is hereby, deof Cook county, a trial de novo was had be-clared to be the west railroad district. Sec. fore the court, a jury being waived, result-2. That no railroad train, locomotive, engine, ing in a judgment in favor of the defendant. or car used for the transportation of pasThat judgment, being taken to the appellate sengers shall be run through or within the court by appeal, was affirmed, and by further limits of the east railroad district, as above appeal the record is brought to this court for described, at a greater rate of speed than ten review. (10) miles an hour; and, in any other case The City of Lake View, during the period than passenger trains, the rate of speed withof time covered by the matters in question, in such districts shall not exceed six (6) was a municipal corporation organized un- miles a hour. Sec. 3. If any railroad corder the general law, embracing a territory poration, or its conductor, engineer, or other extending north and south along the shore of agent or servant, shall violate the provisions Lake Michigan, from the city of Chicago to of the preceding section, such corporation, the town of Evanston, a distance of five conductor, engineer, or other agent or servmiles, and having an average width of about ant shall be deemed guilty of a misdemeanor, two miles. Ashland avenue runs north from and shall be punished by a fine not exceeding the north line of Chicago to a point about two hundred dollars for such offense, in addione mile south of the north line of Lake tion to the liability to such punishment as is View, where it is intersected by Clark street, provided by the statute of the state of Illiand the latter street runs from the point of nois for a like offense. Sec. 4. The mayor intersection, in a course nearly due north, to of the city of Lake View is hereby charged said north line of Lake View; said street and with the duty of using all means and measavenue thus forming a continuous line, north ures in his power to detect and punish any and south, through Lake View, and dividing violation of this ordinance; and the city atit into two nearly equal sections. Two torney is hereby charged with the duty of lines of railway, and two only, run through rendering the mayor such assistance in the said city, viz., the Chicago & Northwestern premises as may be necessary to bring to punand the Chicago & Evanston, both in a north ishment any offenders against this ordinance. and south direction, and nearly parallel with Sec. 5. An ordinance entitled An ordinance each other. The Chicago & Northwestern to regulate the speed of railroads,' passed and Railway runs from the city of Milwaukee, approved July 19, 1886, and an ordinance through the town of Evanston, to its general amendatory thereof, passed August 2, 1886, passenger station in the city of Chicago, and are hereby repealed. Sec. 6. This ordipasses through the city of Lake View, par-nance shall take effect and be in force from allel with Ashland avenue, and about one- and after its proper publication." eighth of a mile westerly therefrom. The The defendant was a locomotive engineer in Chicago & Evanston Railway runs from the the employ of the Chicago & Evanston Railtown of Evanston to its general passenger way Company, and the complainant charges station in Chicago, and passes through Lake that on the 21st day of February, 1881, he View on a line nearly parallel with Ashland ran a train of cars on said railway, through avenue, and from a third to a half of a mile the east railway district of said city of Lake easterly therefrom. On the 19th day of July, View, at a greater rate of speed than 10 miles 1886, a general ordinance regulating the an hour, in violation of said ordinance. It speed of trains in Lake View was passed, was proved at the trial, and is admitted here, said ordinance being applicable alike to all that the defendant, at the time and place railways, and limiting the speed of passenger charged in the complaint, ran a passenger trains to ten miles an hour, and of freight train on said railway at a greater rate of trains to six miles an hour. On the 2d day speed than 10 miles an hour; the only contenof August, 1886, said ordinance was so tion being as to the validity of said ordinance. amended as not to apply to any railway com- Paragraph 21, § 1, art. 5, of the general inpany which should maintain gates or flagmen corporation law, empowers the city council at certain designated crossings. January of any city organized thereunder "to regulate 13, 1888, the following ordinance was passed, the speed * * * * of cars and locomotives to-wit: "Be it ordained by the city council within the limits of the corporation." 1 Starr of the city of Lake View: Section 1. That, & C. 464. Section 24 of the act in relation to in order to regulate the speed of railroad fencing and operating railroads provides that trains within the city of Lake View, the fol- no ordinance shall limit the rate of speed, in lowing described districts are hereby estab- case of passenger trains, to less than 10 miles lished: First. All that part of the city of per hour, nor in any other case to less than 6 Lake View lying east of Ashland avenue and miles per hour. 2 Starr & C. 1941. With North Clark street, northward from the this exception there is no statute which atpoint where North Clark street intersects tempts to prescribe either the mode or measwith Ashland avenue, shall be, and the same ure of the limitation which municipal corpois hereby, declared to be the east railroad rations may impose upon the speed of trains district. Second. All that part of the city of running within their corporate Imits. So Lake View lying west of Ashland avenue far, then, as the statute is concerned, the and North Clark street, at the point where whole matter, with the above exception, is left to the discretion of the municipal authori- | safety, such discrimination is necessary, and therefore warranted. Undoubtedly the cir ties. In such case a discrimination could hardly be said to be unreasonable. In the case before us no such disparity of circumstances seems to be shown. Part of the line of both railways is through thickly settled portions of the city, and part through sections where there are but few inhabitants. It may be fairly inferred from the evidence that the number of persons and vehicles ordinarily The law is well settled, however, that where cumstances of two lines of railway runthe subject-matter and provisions of a mu- ning through the same city may be such as nicipal ordinance are left to the discretion of to justify, or even necessitate, the imposition the city council, such discretion is not abso- of different measures or restraint upon the lute, but is subject to the limitation that the speed of their trains. One may run through ordinance must be reasonable. "Where the a portion of the city which is densely populegislature, in terms, confers upon a munici-lated, and where a high rate of speed would pal corporation the power to pass ordinances be extremely dangerous to persons and propof a specified and defined character, if the erty, while the other may run through a porpower thus delegated be not in conflict with tion of the same municipality where there are the constitution, an ordinance passed pursu- but few inhabitants, and where it is extremeant thereto cannot be impeached as invalidly improbable that injury will happen to any because it would have been regarded as un-person who is in the exercise of ordinary care. reasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance, passed in pur-crossing the track of the Chicago & Evanston suance thereof, must be a reasonable exercise Railway at the street crossings of the city of the power, or it will be pronounced in- within a given time is somewhat greater than valid." 1 Dill. Mun. Corp. §§ 319, 328, and the number of those crossing the track of the authorities cited. Whether a particular ordi- Chicago & Northwestern Railway during the nance is unreasonable, and therefore void, is same time, but it appears that the number a question for the court, and not for the jury, crossing the track of both railways is very and evidence bearing upon the question is large, and that the disparity is not so great as properly addressed to the court; but in deter- to necessitate, or even justify, different regumining it the court will have regard to all the lations as to the speed of trains. We are of circumstances of the city, the objects sought the opinion, then, that no justification for to be attained, and the necessity which exists the discrimination is shown, and that the for the ordinance. Id. § 327. See, also, Tug-ordinance, therefore, must be held to be inman v. City of Chicago, 78 Ill. 405; City of valid. Chicago v. Rumpff, 45 Ill. 90. Thus far we have discussed the question of the validity of the ordinance as though it were open to this court to consider and weigh the evidence bearing upon that question; but if the matters thus presented are to be regarded as mere questions of fact, upon which the judgment of the appellate court is final, the same result necessarily follows. The case was tried in the criminal court before the court without a jury, and was submitted to the court upon the evidence, no propositions being presented to be held as the law in the decision of the case. If, then, the determination of the validity of the ordinance involved the decision of a question of fact, or even of a mixed question of law and fact, such questions are conclusively settled by the judgment of the criminal court, affirmed, as said judgment has been, by the appellate court. either view of the case, the judgment of the appellate court must be affirmed. It is alleged that the ordinance in question is unreasonable, because it constitutes a special and unwarranted discrimination between two rival and competing lines of railway. Both of said railways are engaged in the business of transporting passengers from the town of Evanston to the city of Chicago, large numbers of whom, as the evidence shows, are being transported between those points daily. The Chicago & Evanston Railway, running, as it does, through the east railroad district, is limited to a speed of 10 miles an hour. But the previous ordinances which were applicable to the entire city being repealed, and no new limitation being imposed upon the speed of trains in the west railroad district, the trains on the Chicago & Northwestern Railway were subject to no limitation as to speed, but might run at a much higher rate. In suburban transportation speed is a matter of prime importance, and the railway company that is able to offer to the public the speediest transportation thereby acquires a very important and manifest advantage over its competitors. That said ordinance constitutes an important discrimination between said lines of rail1. A provision in a lease that the lessor shall way does not admit of serious question. Its have "a valid and first lien for rent upon the propvalidity, then, must depend upon whether the erty of the" lessee does not create a lien on personspecial circumstances, as shown by the evidence, are such that, in the interest of public In (131 Ill. 68) BORDEN v. CROAK.1 (Supreme Court of Illinois. Nov. 26, 1889.) LEASES-LANDLORD'S LIEN-APPEAL-PRACTICE. 1 Reported by Louis Boisot, Jr., of the Chicago bar. |