I concur in the conclusion of the majority opinion that this court is bound to uphold the validity of the act assailed in this case as a valid exercise of the police power. I do not concur in some of the reasoning in the majority opinion *Page 559 by which the judgment of the court is reached. It has been properly said therein that this court cannot question the wisdom, or lack of it, of the act. Whether the act unduly burdens municipalities to which it applies or restricts local self-government, are, unless within constitutional inhibition, matters of legislative policy, and however strongly courts may feel on the matter, relief on such phases may be afforded only by the General Assembly. The only question that this court may pass upon is whether the legislature has power to pass the act. That it has such power, unless prohibited by some provision of the constitution, is so well settled as to require no citation of authority. The question is solely, as I conceive it, whether the act before us is prohibited by the constitution. If it is not, its validity must be sustained.
An act of the General Assembly, though an exercise of the police power, is subject to constitutional limitations. The constitution is supreme. (City of Mt. Vernon v. Julian, 369 Ill. 447; Sutter v. People's Gas Light and Coke Co. 284 id. 634;Ritchie v. People, 155 id. 98; Town of Lake View v. RosehillCemetery Co. 70 id. 191.) As set out in the majority opinion, section 10 of article 9 of the constitution declares "the General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes." In my opinion, the question upon which the decision in this case must turn is whether fixing the wages of firemen by an act of the General Assembly is an invasion of this limitation. Obviously, unless it is, the act is valid.
Living conditions cannot, in my judgment, be made a basis for sustaining this act. While, in cases of emergency or those involving a charity, living conditions have been recognized as the basis of remedial legislation, yet to say that living conditions of firemen justify the fixing of a minimum wage by legislative enactment is to open the act to attack by reason of lack of uniformity and to bring it within *Page 560 the constitutional provision against special legislation. To say that the city may impose a debt, resulting in a tax on a municipality, to increase the income of firemen on the ground that living conditions are a matter of general police power, is to render the act subject to constitutional prohibition against class legislation, since there is no reasonable basis of distinction between living conditions affecting firemen and living conditions surrounding clerks, stenographers or other employees of the same city. I do not believe this act can be declared valid on that ground.
Section 10 of article 9 of the constitution prohibits levying a tax upon a municipality for corporate purposes. That which creates a debt requiring a tax to pay it, is, in effect, the levy of a tax. Is the debt created by this act a debt for corporate purposes? The rule is generally recognized that so far as public corporations of any class, however incorporated, exercise powers conferred upon them for purposes essentially public — purposes pertaining to the administration of general laws made to enforce the general policy of the State or provide for the general welfare — they are to be deemed agencies of the State, and, in so far as they exercise powers voluntarily assumed — powers intended for the private advantage and benefit of the locality and its inhabitants — they act in their private corporate capacity. Roumbos v. City of Chicago, 332 Ill. 70; 1 Beach on Public Corporations, sec. 261.
What are corporate purposes has been considered in numerous decisions of this court. (People v. City of Chicago, 351 Ill. 396; Robbins v. Kadyk, 312 id. 290; Stone v. City of Chicago, 207 id. 492; Board of Supervisors v. Weider, 64 id. 427.) It is held in these cases that corporate purposes are only such as are germane to the objects of the creation of the municipality — at least such as have a legitimate connection with those objects and a manifest relation thereto. It is a rule of general acceptance that the General Assembly may compel a corporation to perform any duty *Page 561 which relates to the general welfare and security of the State, although the performance of such duty would create a debt to be paid by local taxation. (People v. City of Chicago, supra; St.Hedwig's Industrial School v. County of Cook, 289 Ill. 432; Boardof Trustees v. Lincoln Park Comrs. 282 id. 348; City of Chicago v. Manhattan Cement Co. 178 id. 372; Wetherell v. Devine, 116 id. 631; Dry v. Davidson, 115 S.W.2d (Tex.) 689; State v. Love,89 Neb. 149, 131 N.W. 196; Luhrs v. City of Phoenix, 83 P.2d (Ariz.) 283.) The fact that a power or function is delegated to a city is not, of itself, conclusive evidence that the State does not also retain the right to legislate upon it, even though so to do would impose a tax on a municipality. Where the State delegates governmental functions to a municipality, such as the regulation of public health and the like, such delegation is as a convenience in the execution of such function of government, and in it, the city, though exercising governmental functions, is acting as an aid or agent of the State in the more convenient exercise of the power. The State no less retains the power to legislate on the subject. So it cannot be said that all governmental powers delegated to municipalities become by such delegation, or for any other reason, solely corporate purposes within the meaning of section 10 of article 9 of the constitution, but they may remain rather a delegation of State governmental functions to a municipality. The cases show, and the scheme of our State government indicates, the purpose that the General Assembly be empowered to impose, by legislation, taxes against the property of municipalities in two general classes of cases (a) where a function of government has not been delegated to a municipality and which it derives from its organization as a municipality no power to perform, as police pensions and the like, and (b) those functions of government delegated to the municipality but as to which the State, by reason of the public interest and welfare involved, retains and must, by the very nature *Page 562 of the function, retain, the power of legislation, as health regulations and the like. As to the latter, the power delegated to municipalities is to act as agents of the State.
In the early case of Wilcox v. City of Chicago, 107 Ill. 334, the difference between powers conferred and duties imposed upon a city by legislative enactment, and the question whether the General Assembly has power to impose regulations governing fire departments, were under consideration. In that case, exemption from liability for injuries caused by firemen was placed upon the ground that the services performed by them and by the municipal corporation are in obedience to an act of the legislature, one in which the corporation, as such, has no particular interest and, as such, derives no special benefit, and that the members of the fire department, although appointed by the municipal corporation, are not the agents and servants of the city for whose conduct it is liable, but they act rather as officers of the city, charged with a public duty. The rule, as adopted and announced, not only by this court but by the great majority of the courts in this country, is that a fire department maintained by a municipal corporation belongs to the public or governmental branch of the municipality. Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289;F. M. Ins. Co. v. Keeseville, 148 N.Y. 46, 42 N.E. 405; Boyd v.Ins. Patrol, 113 Pa. 269, 6 A. 536; Shanewerk v. Ft. Worth,11 Tex. Civ. App. 271, 32 S.W. 918; Wilde v. Paterson, 47 N.J.L. 406, 1 A. 490; Saunders v. Ft. Madison, 111 Iowa 102,82 N.W. 428; Brink v. Grand Rapids, 144 Mich. 472, 108 N.W. 430;Hillstrom v. St. Paul, 134 Minn. 451, 159 N.W. 1076.
Are these governmental functions of the municipality vested alone in it or do they have broader features which result in the retention by the State of the exercise of their regulation by the General Assembly? Dillon on Municipal Corporations, first edition, section 774, states that the operation of a fire department is in obedience to acts of the General Assembly and one in which the corporation has no particular *Page 563 interest, derives no special benefit in its corporate capacity, and that firemen are not, therefore, agents or servants of the city for whose conduct it is liable, but they act rather as officers of the city, charged with a public service. This view is cited with approval in Roumbos v. City of Chicago, supra. It is generally conceded that the maintenance of police and fire departments is in the exercise of the police power, and it seems clear that those functions, while delegated to municipalities by the State, are functions of government as to which the State, in the exercise of police power, retains final control. That the State does retain control over fire departments and firemen is evidenced by the act pertaining to police and fire commissioners (Ill. Rev. Stat. 1937, chap. 24, par. 843, et seq.) and like provisions of statutes prohibiting interference with the discharge of duties of firemen or with fire apparatus and the like.
People v. City of Chicago, supra, and cases there cited, are, in my opinion, binding upon this court in this matter. In that case, certain persons appointed as probation officers by the municipal court of the city of Chicago sought by mandamus to compel compliance with an act fixing minimum salaries of such officers and directing payment thereof by the city. To the argument that the act contravened sections 9 and 10 of article 9 of the constitution, it was held that the General Assembly may compel a municipal corporation to perform any duty which relates to the general welfare and security of the State, though such performance will create a debt to be paid by local taxation. It was held, also, that the language "for corporate purposes," used in section 10 of article 9 of the constitution, does not include functions which a municipal corporation performs in its governmental capacity as an agency of the State, and that, as to them, the General Assembly may impose burdens, though they result in taxes upon the municipal corporation.
The argument of counsel that the holding of the court was there based on the conceded power of the legislature to establish courts, is not apt. While probation officers in *Page 564 that case were appointed by the municipal court, and so may be said to be a part of the judicial structure, the ground upon which the city may be made to pay their salaries is not that they form a part of the judicial structure of State government but that the functions which they, as officers, discharge are governmental, and, regardless of who appointed them or the title they bear, the duties discharged by them affect the general welfare or the safety of the State. It is, it seems to me, illogical to say that because the constitution is a mandate to, or confers plenary powers upon, the General Assembly to establish a judicial system for the State, that body may levy a tax against a municipality for a corporate purpose, though a tax for such purpose is prohibited by other provisions of the constitution. Such a view would render inconsistent and repugnant to one another the applicable provisions of the constitution. As I view it, the basis and reason of the decision in People v. City ofChicago is, and was necessarily, that the fixing of minimum salaries for probation officers is not a corporate purpose of the city. That decision is not, and, as I view it cannot be, based upon the fact that such officers are a part of the judicial system of the State. While that fact may be said to constitute proof of lack of corporate purpose, yet it is the existence of the thing proved that affords constitutional basis for such an act. It seems a distinction without a difference to say that the reason for the rule is based upon the fact that probation officers are a part of the court system, while firemen are not. Janitors of the court building, appointed by the court and paid by the city, could, by such reasoning, be brought within a minimum wage act imposed by the General Assembly, because they are a part of the court system, though it could scarcely be said that they carry on governmental functions.
As the maintenance of fire departments and the services of firemen belong to the governmental rather than the corporate functions of cities and are governmental functions *Page 565 which the cities discharge as agencies of the State, it seems clear that an act regulating their salaries, though it creates a debt against the city, cannot be said to result in the levy of a tax by the legislature against the city for corporate purposes. Such is the extent of the limitations of sections 9 and 10 of article 9 of our constitution. I am, therefore, of the opinion, for the reasons hereinabove expressed, this court is without power to declare this act unconstitutional. Appellants' remedy lies with the General Assembly.