In my judgment, the interpretation of the constitution adopted by the foregoing opinion is unduly narrow and unwarranted by precedent. By enacting the statute in question here, the legislature has attempted to provide a means whereby errors in municipal tax levy ordinances may be corrected before taxes are extended. By means of its provisions, a successful objection redounds to the benefit of all taxpayers concerned instead of to the objector alone as heretofore has been the case. It is not the province of the court to pass upon the wisdom of these provisions. We are concerned solely with their validity under the constitution. While it is our solemn duty to strike down laws obviously in conflict with that instrument, the power vested in us to do so should be exercised with caution in order that its provisions, intended to provide security for future generations, may not, instead, become a barrier preventing the achievement of that end. *Page 400
I do not believe that the notice provisions in the act deprive taxpayers of due process of law. The concept of due process is complex and undefinable except as applied to particular situations. In tax cases, it merely requires that the taxpayer at some stage in the proceeding be given "an opportunity, of which he shall have notice, to be heard as to the validity and extent of the tax." (People v. Arnold Bros. 282 Ill. 305.) Heretofore, such notice and opportunity to be heard were given by the proceedings for judgment and sale of real estate and by suits for the collection of personal property taxes. (People v. ArnoldBros. supra; Neal Institute Co. v. Stuckart, 281 Ill. 526.) The action for the collection of taxes against real estate is one inrem as to which we have held that notice by publication is sufficient. (People v. Cesar, 349 Ill. 372.) On the other hand, a delinquent personal property tax is a direct personal liability. The constitution may require notice to every taxpayer in order to impose personal liability where each must protect his own rights, but I do not believe such requirement exists where a successful objection by one taxpayer redounds to the benefit of all. This court should not assume that every taxpayer affected by a levy will fail to be diligent.
Each State may determine for itself by what method its own citizens may be informed by suits against them provided, of course, substantial justice is accorded to litigants. (Nelson v.Chicago, Burlington and Quincy Railroad Co. 225 Ill. 197.) The action required by a taxpayer, since the enactment of this act, in order for him to object to an illegal levy is analogous to that heretofore required of him when he sought to object to an illegal assessment. In this latter instance, we have held that he must seek to have his assessment corrected by administrative action. (People v. Illinois Women's Athletic Club, 360 Ill. 577;Bistor v. McDonough, 348 id. 624.) Under the present statute, he must raise any objections he has to *Page 401 an illegal levy in the county court. He is given notice of his opportunity to obtain administrative review of his assessment by the statute, and due process, it has been held, requires no more.(Carney v. People, 210 Ill. 434.) He is notified of the proceeding provided in this act by publication, a means no less effective. True it is that the determination of the administrative agencies in question may be characterized as legislative in nature while those of the county court are judicial but, since the ultimate effect of both on a taxpayer's liability is the same, no reason appears why more extensive notice should be required by statute in one and not in the other.
The opinion relies extensively upon cases holding that a personal judgment may not be rendered against a non-resident of the State upon notice by publication alone. Assuming that a judgment under the act in question here could not be made the basis for a personal judgment against a non-resident taxpayer for this reason, I do not believe that the act is entirely void on that account. A law, general in its terms, may be unconstitutional as applied to one class of persons and yet valid in its application to other classes which differ from the former in material characteristics. (Chicago, Burlington and QuincyRailroad Co. v. Jones, 149 Ill. 361; 11 Am. Jur. 858.) The statute should be upheld, at least as applied to resident taxpayers.
I am further of the opinion that the statute is not constitutionally vulnerable on the remaining grounds assigned by appellants. They contend that the law is local and special and hence violates section 22 of article 4 of the constitution. That section prohibits the General Assembly from passing a local or special law on certain enumerated subjects, among which are the management of common schools and the regulation of county affairs. In addition, it provides that "in all other cases where a general law can be made applicable, no special law shall *Page 402 be enacted." We have held that the clause prohibiting special legislation concerning the management of common schools refers only to the conduct of those schools in imparting instruction,(People v. Pollock, 306 Ill. 358,) and that it does not prohibit special legislation for the support of a school system. (LandComrs. v. Kaskaskia Commons, 249 Ill. 578.) Thus, even if this act were construed to be special legislation, it would not, as to the schools of Chicago, on that account, be in conflict with this clause. County affairs within the constitutional prohibition have been described by this court as "those relating to the county in its organic and corporate capacity and included within its governmental or corporate powers," (People v. Election Comrs.221 Ill. 9,) and special laws relating to the levying and collection of taxes have been held to be proscribed. (Pettibone v. WestChicago Park Comrs. 215 Ill. 304.) An act is not necessarily rendered unconstitutional because it regulates the taxing procedure of a restricted group of taxing districts. If the limitations in the statute are based upon a distinction which is proper under the circumstances, it is not local or special as defined by this clause of the constitution. Thus, the question to be determined under this clause of section 22 is the same as that arising in all cases where a law is challenged as being local or special. Booth v. Opel, 244 Ill. 317; Mathews v. City of Chicago, 342 id. 120.
Section 22 of article 4 does not require that every law shall affect alike every place and every person in the State. A law is general "not because it embraces all of the governed, but because it may embrace all when they are similarly situated and come within its provisions," (People v. Kaelber, 253 Ill. 552,) and if there is a reasonable basis for the classification a law may be general notwithstanding the fact that it operates, at the time it is passed, in only a single place. (Hunt v. Rosenbaum Grain Corp.355 Ill. 504.) Appellants rely upon certain language in the early case of Devine v. Comrs. of Cook County, 84 Ill. 590, (1877) *Page 403 as establishing the proposition that the express power given in the constitution to classify counties for certain purposes indicates an intent to exclude the power to classify them for other purposes. The Devine case, while never overruled, has been repeatedly distinguished. (Cummings v. City of Chicago, 144 Ill. 563; People v. Onahan, 170 id. 449; People v. Kaelber, supra.) The act in question there could never operate except in Cook county, since it was to be in force only six years, and no reasonable grounds for the limitation were advanced. Subsequent decisions indicate that classification of municipalities under certain conditions is proper, and it is only where the judgment of the legislature is arbitrary and without any reasonable justification whatsoever that we are warranted in setting it aside. People v. Callicott, 322 Ill. 390; Stewart v. Brady, 300 id. 425.
Classification according to population has been quite frequently resorted to by the legislature, but a distinction based upon location or numbers, alone, is not sufficient. Thus we have held that the location of municipal corporations within the boundaries of Cook county does not justify a rate of taxation greater than that permitted municipalities of the same size located outside that county. (People v. Knopf, 183 Ill. 410;People v. Chicago and Northwestern Railway Co. 340 id. 102.) We have also held that the scope of the voting franchise cannot be limited or expanded on the basis of the population of the county where a voter happens to reside. (People v. Election Comrs.supra.) No rational difference of situation or condition existed in those cases to justify the diversity of treatment accorded by the statutes in question. Similarly, in People v. Jarecki,363 Ill. 180, we found no reason justifying "a different treatment of delinquent taxes on real estate in Cook county from that in force throughout this State," and as a result held unconstitutional a statute applying only to Cook county which provided for the payment of taxes in installments with a waiver of penalties. On the other hand, *Page 404 we have held that a reasonable ground for distinction exists with reference to the rate of taxation for county and other purposes between densely populated counties and those containing a smaller number of inhabitants. (Booth v. Opel, supra.) More recently, inMathews v. City of Chicago, supra, this court sustained statutes providing for the creation and maintenance of a working cash fund in three of the largest taxing districts in the State. We said there: "Even if the difference be one of degree, only, it may be sufficiently great to require a difference in methods of municipal action. * * * The three municipalities which are now affected by the acts under consideration have populations exceeding 3,000,000 people on a little over 900 square miles of territory * * * with a density of population fifty times as great as the average density in the rest of the State. * * * The annual revenue of each of them is measured by hundreds of millions of dollars instead of thousands. These facts, alone, make it clear that the methods required for the collection, care and disbursement of the comparatively small amounts required by the much smaller municipalities throughout the State would be entirely inefficient for the much larger amounts involved in these larger municipalities," etc. For similar reasons, the procedure heretofore provided for hearing objections to tax levies in these larger taxing districts has proved inadequate. The large number of separate items of taxable property, together with the many different purposes for which taxes must be levied in municipal corporations of such great size, has resulted in a multitude of suits by objecting taxpayers. The burden under the existing procedure for hearing these complaints borne by local officials both administrative and judicial is far out of proportion to that borne by those in other parts of the State.
Appellants contend, however, that the case of People v. Cooper,83 Ill. 585, decided in 1876, prevents the enactment *Page 405 of a law to remedy this inequality. The statute held bad in that case gave cities the option to levy and collect taxes by means of the procedure created therein or by that provided in the general law for the incorporation of cities. No qualifications were set up to justify the use of one method rather than the other; indeed, cities might change from one to the other at will. Obviously, that is not the case here. The act before us in this case is designed to remedy the aggravated conditions existing in the taxing districts to which it applies — conditions which distinguish these districts from the rest of the State. Thus, a reasonable ground for classification exists and the act is not objectionable on this score. For the same reason, the act does not deprive affected taxpayers of the equal protection of the laws. It has been repeatedly held that this provision in the fourteenth amendment to the Federal constitution permits a statutory classification of municipal corporations based upon the practical necessities of administration in dealing with a population unequally distributed over a State. People v. City ofSt. Louis, 297 Ill. 199; Price v. City of Elgin, 257 id. 63;People v. Warden of City Prison, 183 N.Y. 223, 76 N.E. 11;Tenement House Department v. Moeschen, 179 id. 325, 72 N.E. 231, affirmed, 203 U.S. 583; Clark v. Kansas City, 176 U.S. 114;Williams v. Eggleston, 170 id. 304; 12 Corpus Juris, 1150.
It is appellants' further contention that the proceeding provided by the act lacks all the requisites of a justiciable controversy, and that, as such, it violates fundamental constitutional principles. This court has said that "judicial investigation, ordinarily at least, should be limited to rights which have actually accrued, and all attempts to obtain from the courts decisions in relation to rights which have not yet accrued, or to the validity of transactions which have not yet been entered into, ought to and usually do prove abortive."(Union Coal Co. v. City of LaSalle, 136 Ill. 119.) Tested by this standard, the proceeding provided in the *Page 406 present statute is not subject to challenge. Upon the passage of a levy ordinance, certain rights immediately accrue in favor of the taxing body. True, these rights are to some extent inchoate until an assessment has been made and taxes extended, but as far as the taxing body is concerned, the amount deemed necessary for governmental services has been established, the propriety and necessity of which is a fit subject for judicial investigation.State v. Nickerson, 99 Neb. 517; 61 Corpus Juris, 552.
Appellants rely on Tregea v. Modesto Irrigation District,164 U.S. 179, and Muskrat v. United States, 219 id. 346. In the former, the Supreme Court of the United States decided that an order entered in a statutory proceeding in California confirming the validity of administrative action taken as a condition precedent to the issuance of irrigation bonds could not be reviewed by that court because no justiciable issue was presented. The court found that the opposing parties, the directors of the district and the district itself, had no adverse interests and that its decision would merely "be an adjudication of the right to make a contract." Such is not the case here. The bill for confirmation of the levy ordinance is filed by the county clerk in his official capacity, notice of the proceedings is directed to all taxpayers concerned, and the issue raised is the validity of the levy ordinance, already passed. Plaintiffs argue that the county clerk has no interest in the subject matter of the suit and hence cannot be considered to occupy a position adverse to that of the taxpayers. His powers under this act, however, are not unlike those of an executor of a will who may offer the instrument for probate, (Dodd v. Anderson, 197 N.Y. 466, 90 N.E. 1137; In re Collins' Estate, 174 Cal. 663,164 P. 1110;) and who is under a duty to defend it. (Joyal v. Pilotte,293 Ill. 377; Donovan v. St. Joseph's Home, 295 id. 125.) While petitioning for the confirmation of the levy ordinance, the interests of the county clerk are clearly adverse to those of objecting taxpayers, *Page 407 which fact, alone, distinguishes both the Tregea case and Muskrat v. United States, supra. (Fidelity Nat. Bank and Trust Co. v.Swope, 274 U.S. 123.) Furthermore, after the decision of the county court, no alternative is given the county clerk but to extend the taxes in accordance with its order. While it is true that he need not comply with an order of this court authorizing a levy greater than that permitted by the county court unless authorized by the taxing district, there is nothing in the constitution which prevents a litigant from waiving the benefits accruing from a judgment in his favor.
Appellants further say that since the county court of Cook county is the only court in the State at present entitled to entertain proceedings under this act, there is a violation of section 29 of article 6 of the constitution. This section was construed in Knickerbocker v. People, 102 Ill. 218, and its purpose declared to be merely to prohibit special legislation "with respect to certain matters affecting courts in all cases where the object of the legislation could be attained by the adoption of a general law." (Hunt v. Rosenbaum Grain Corp.supra.) As we have previously shown, this is a general law as defined by the constitution. Nor does the act in question deprive the circuit courts of any jurisdiction established by section 12 of article 6 of the constitution. It is true that those courts have always had jurisdiction to enjoin the collection of taxes based upon illegal tax levies but the mere fact that they will not be called upon to exercise their power if the provisions of the act before us are complied with is no source of objection.
In my opinion, the statute in question is valid and the decree of the circuit court should be affirmed.
JONES and WILSON, JJ., concur in the foregoing dissenting opinion. *Page 408