dissenting:
At the March term, 1890, three cases were submitted to the Court, all involving the question of the validity of the act of 1889 entitled “An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers.” One of these cases was assigned to me at that time, and being unable, after a careful study of the act, to concur in the view that it was a constitutional law, I prepared an opinion holding the act to be invalid, which was read to the other members of the Court at the May term in Mount Vernon. The foregoing opinion of Mr. Justice Bailey written since the May term does not satisfy me that the views then expressed were wrong. Such portions of the opinion so prepared and read at Mount Vernon, as apply to the principal questions arising upon the record in this particular case, are as follows:
Section 13 of article 4 of the constitution of 1870 contains the following provision: “No Act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be so expressed.” The constitutions of many of the States of the Union contain substantially the same prohibition as that embodied in the first sentence of this provision, but fail to make the declaration named in the second sentence. At least twenty of such States are mentioned by Cooley in his work on Constitutional Limitations. (5th ed. top pages 170, 171, note 4). Some of the States, among which may be mentioned Indiana, Oregon and Iowa, have inserted in their constitutions some such saving clause as that expressed in the second sentence of the above quoted provision. Our constitution of 1848 did not provide that only so much of a law as related to a subject not expressed in the title should be void, and it limited the restriction against embodying more than one subject in an Act to private or local laws; section 23 of article 3 of that constitution contained these words: “no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.”
The constitution of 1870 went further than that of 1848 and provided that no Act, whether private and local or public and general, should embrace more than one subject. The enlargement of this provision when transferred into the new constitution adopted by this State in 1870, and its insertion in the constitutions of so many of the States, attest its necessity and its wisdom. It had its origin in the bitter experience to which the people had been subjected by vicious legislation. It was designed to furnish a remedy for serious defects in the existing methods of making laws. It was found that clauses, whose character was in no way indicated by the title of an Act, were often introduced into its body, and thus members of the legislature would be misled into supporting that which would have met with opposition if attention had been drawn to its real nature and effect. Furthermore, where two different subjects were inserted in a bill, legislators who approved of “one but disapproved of the other, were oftentimes induced to vote for both in order to secure" the passage of what was favored by them. This practice of bringing together in one Act several different measures, with a view to combine in their favor the advocates of each, often results in the adoption of a provision which could never succeed on its own merits. Such legislation has been said to be “both corruptive of the legislator and dangerous to the State.” (People v. Mahoney, 13 Mich. 481).
The purpose of such a constitutional provision as section 13 of article 4 may therefore be stated to be “first to prevent hoclge-podge or ‘log-rolling’ legislation; second, to prevent surprise or fraud upon the legislature * * * ; third, to fairly apprise the people * * * of the subjects of legislation that are being considered.” * * * (Cooley on Cons. Lim. 5th ed. page 173.) Hence, the provision in question is mandatory, and in my opinion it is the duty of this Court to enforce it. (Id. pages 98, 180, 181).
Does the Act of May, 1889, embrace more than one subject ? It contains general provisions for the creation of sanitary or drainage districts. Section 1 provides that “whenever any area of contiguous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district under this Act,” etc. Then follow provisions for the organization of the district, for the election of trustees, for investing the district with the general corporate powers of a body corporate and politic, for the organization of the board1 of trustees who, as a board, are declared to be the corporate authorities, for the election of the officers of the board and the fixing of their salaries, for the passage, publication and proof of ordinances, etc.
.The first clause of section 7 provides that “the board of trustees of any sanitary district organized under this Act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and out-lets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or out-lets to accomplish the end for which they are designed in a satisfactory manner.”
These and other provisions relate to the creation of Sanitary districts. Though called sanitary they are in reality drainage districts. Section 31 of article 4 of the constitution provides for the construction of “drains, ditches and levees for agricultural, sanitary or mining purposes.” A drainage district may be organized for sanitary as well as for agricultural or mining purposes. The districts provided for in'the Act of 1889 are formed for the purpose of securing sanitary results, but it is proposed to secure such results by means of channels or out lets' for drainage. The end may be health, but drainage is the means. The authorities, who are clothed by said section 31 with the power to “construct and maintain levees, drains and ditches” are the corporate authorities of drainage districts. The corporate authorities of the districts named in the act of 1889 are also clothed with the power to provide for drainage by constructing and=maintaining drains, ditches, channels and outlets. Such districts, possessing as they do all the features and characteristics of drainage districts, are none the less drainage districts because they are denominated sanitary districts.
But the Act in question, besides containing general provisions in regard to sanitary or drainage districts, contains also special provisions for the construction of a navigable channel or waterway from the waters of Lake Michigan into the Des-Plaines and Illinois rivers.
The last sentence of section 7 provides that the channels or outlets to be constructed may extend outside of the district, and that the trustees shall have the same rights and powers over the portion outside as over the portion inside of the district. Section 8 permits the sanitary district to acquire, by purchase or condemnation, such property and right of way as may be required for its corporate purposes. Section 17 authorizes the district to enter upon any public property or property held for public use, and to acquire the right of way over the same, and to “enter upon, use, widen, deepen and improve any navigable or other waters, waterways, canal or lake.” Section 17 also permits a district organized under the Act to use so much of the Illinois and Michigan Canal as lies within ' the limits of the county in which the district is situated without compensation except for transportation purposes, but directs that no such district shall occupy any portion of said canal outside the limits of such county “for the site of any” “improvement, which any district is authorized by this Act to make,” except to cross the same, etc.
Section 23 provides that “if any channel is constructed under the provisions hereof hy means of which any of the waters of Lake Michigan shall be caused to pass into the Les Plaines of Illinois rivers, such channel shall be constructed of sufficient size and capacity to produce and maintain at all times a continuous flow of not less than 300,000 cubic feet of water per minute, and to be of a depth of not less than fourteen feet, and a current not exceeding three miles per hour, ” such portion of said channel, as shall be cut through a rocky stratum above a certain grade, to have double the flowing capacity above provided for “and a width of not less than 160 feet at the bottom capable of producing a depth of not less than 18 feet of water;” section 24 then declares,that, “when such channel shall be completed and the water turned therein to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream,” etc.
It is true that section 20 requires any channel or outlet, constructed by any such district which shall cause the discharge of sewage into any river beyond the district, to be of such size, condition and flowing capacity, that “the water thereof shall be neither offensive or injurious to the health of any of the people of this State,” but sections 23 and 24 provide, that any channel, made under the provisions of the Act Avhich shall carry the waters of Lake Michigan into the Des Plaines or Illinois rivers, shall be of sufficient size and capacity to be navigable, independently of the question whether its water is or is not offensive or injurious to the' health of any of the people. In other words, the channel, through which any of the waters of Lake Michigan are made to pass into the Des Plaines or Illinois rivers, must be made navigable, even though the size and capacity required to make it navigable may be greater than is necessary to prevent the sewage in the Avater from injuring the public health. Thus it appears that the authors of the Act had two distinct objects in view: one was to create sanitary districts; the other was to construct a water-way from Lake Michigan, through the Illinois and Michigan Canal and the Des Plaines river, into the Illinois' river, for the purposes of navigation.
The two-fold nature of the Act is further apparent from other of its provisions. Section 23 provides that “if at any time the general government shall improve the Des Plaines or Illinois rivers, so that the same shall be capable of receiving a flow of 600,000 cubic feet of water per minute, or more, from said channel, and shall provide for the payment of all damages which any extra flow above 300,000 cubic feet of water per minute from such channel may cause to private property, so as to save harmless said district from all liability therefrom, then such sanitary district shall within one year thereafter enlarge the entire channel, leading into said Des Plaines and Illinois Rivers from said district, to a sufficient size and capacity to produce and maintain a continuous flow throughout the same of not less than 600,000 cubic feet of water per minute with a current of not more than three miles per hour, and such channel shall be constructed upon such grade as to be capable of producing a depth of water not less than T8 feet throughout said channel, and shall have a width of not less than 160 feet at the bottomin section 24 it is then provided, that, “whenever the general government shall improve the Des Plaines and Illinois rivers for navigation to connect with this channel, said general government shall have full control over the same for navigation purposes, but not to interfere with its control for sanitary or drainage purposes.”
The sanitary district named in section 23 is thus required to enlarge the channel constructed by it, not when drainage or sanitary necessities shall demand such enlargement, but when the general government shall improve the Des Plaines or Illinois rivers to a certain extent and shall provide for the protection of the district against any damages that may result from such enlargement. The object of thus enlarging the channel is to make it correspond in size and capacity with the improvement to be made by the general government in the Des Plaines and Illinois rivers, and then to turn it over to the control of the general government for navigation purposes. The increase of the width and depth and flowing capacity of the channel for such a purpose as is thus indicated has no ■connection whatever with the subject of drainage or sanitary conditions. Navigation is one matter; drainage is Another and entirely different matter. The distinctness of the two is ■shown by the language of section 24, which provides for the ■control of the channel by one jurisdiction for navigation purposes, and by another jurisdiction for sanitary or drainage purposes.
Section 23 also provides that a channel constructed in the. Des Plaines river shall be of sufficient width and depth to carry the water down a certain slope between Lockport and Joliet ; -that the dam owned by the State near the first lock of the Illinois and Michigan Canal at LaSalle shall be removed by "the Canal Commissioners in a certain contingency and under ■certain conditions; that “the district constructing a channel do carry water from Lake Michigan of any amount authorized by this Act may correct, modify and remove obstructions in the Des Plaines and Illinois rivers wherever it shall be necessary so to do to prevent overflow or damage along said river, ■and' shall remove the dams at Henry and Copperas Creek in the Illinois river before any water shall be turned into said ■channel.”
Section 27 provides that if a channel is constructed in accordance with said section 23, the trustees of the district shall ■notify the Governor; that the Governor shall appoint three •commissioners to inspect said work, one residing at Joliet or between there and LaSalle, one at LaSalle or between there- and Peoria, and one at Peoria or between there and the mouth of the Illinois river; that such commissioners shall meet within ten days at Chicago, and shall employ a civil engineer and other assistance, and shall make such examination and surveys of the Chicago river and of the channel authorized by the-Act as will enable them to ascertain whether the channel is of" the character and capacity required by the Act; that, “in case-they shall find the work in all respects in accordance with the provisions of section 23,” that is to say, of such size and capacity as are necessary to make the channel navigable, “they shall so certify to the Governor,” etc.
Coming back to section 7 we find that, in addition to the-powers of the trustees of the district which have already been-mentioned, such trustees shall have power “also to make and establish docks adjacent to any navigable channel made under the provisions hereof for drainage purposes, and to lease, manage and control such docks, and also to control and dispose-of any water-power which may be incidentally created in the-construction and use of said channels or out lets,” etc. The-district, however, is not to control water after it passes beyond its channel into any river, or water power or docks on such-river. It thus appears that, after the navigable waterway is-finished, the sanitary district which constructs it is authorized to go into the business of building and managing docks “adjacent to” it, and of controlling and disposing of water power-created by it.
It cannot be said, that making and leasing and controlling-docks is subject matter which is germane to the creation of . sanitary or drainage districts. The docks are incidents to the construction of the navigable water way. They are germane-to the subject of navigation. Docks are for the use of vessels, boats and other water craft, and can exist only on water that is navigable. Section 9 authorizes the board of trustees of the district to bbrrow money for corporate purposes and issue .bonds therefor to the amount of $15,000,000.00. SectionjLO, which directs them to levy an annual tax to pay the interest on this debt as it falls due, and the principal within at least twenty years, provides that “the net earnings from water power and docks may be appropriated and applied to the purpose of paying the interest or principal of such indebtedness or both, and to the extent that they will suffice, the direct tax may be remitted.”
But the business of earning money by means of docks and water power is not germane to the subject of creating sanitary districts simply because the Act permits the earnings from such business to be applied to the payment of the corporate debts. It might as well be said that a city, town or village can go into the dry goods or hardware business in order to make money to pay its debts. I conclude, therefore, that the provisions of the Act concerning docks and water power belong to the subject matter of those portions of the Act, which relate to the construction and maintenance of a navigable water-way, and must stand or fall with such subject-matter.
It will thus be seen that the Act of 1889 really embraces within its' 27 sections two distinct measures. One is general, and relates to the organization, powers and operation of drainage districts in any or all of the counties of the State where there is an area of contiguous territory within the limits of a county, containing two or more incorporated cities, towns or villages, and having a common outlet, etc., as above specified.
The other measure is special and local. This is shown by the provisions already referred to and by the use of the words: Lake Michigan, Chicago River, Illinois and Michigan Canal, Des Plaines River and Illinois River. The second measure relates, as already stated, to a navigable water course between the waters of Lake Michigan and the mouth of the Illinois River, with docks and wharves along its banks. Such, water course is to be constructed by a single sanitary or drainage district consisting of the city of Chicago and one or more of its outlying towns or villages, etc., located within the county of Cook. ■ Of this it is necessary to take judicial notice, because the language used in the Act cannot possibly apply to any other locality. ' Counsel for appellees, in one of their briefs, admit that the Act has in view the two objects here spoken of by the use of the following language: “The greater part of any outlet which may be constructed for the Chicago Sanitary District, under the provisions of the Statute, will lie outside of the territorial limits of the district, and it is required to be constructed, not with sole reference to the necessities of the district, but in part with reference to its possible adaptation for public uses as a navigable stream.”
Can there be any doubt that the act embraces more than one subject? Can there be two subjects more distinct and diverse in their character than a grand navigable waterway, built to float the inland commerce of this nation from the Lakes on the north through the Illinois and Mississippi rivers into the Gulf on the south, and drainage districts organized in the various counties of a single State for purely sanitary purposes ?
Unquestionably the Act violates the constitutional mandate that “no Act hereafter passed shall embrace more than one subject.” The question now arises, whether or not the provisions of the Act relating to one of the subjects named in it can be allowed to stand by excluding the provisions relating to the other subject, in accordance with the saving clause contained in section 13 of Article 4 of the constitution. That section requires that the one subject to be embraced in the Act “shall be expressed in the title,” and then proceeds to say that, “if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be so expressed.” But what is to be the consequence, if the Act embraces two subjects and both of those subjects are expressed in the title?
It will be noted, that the title of this Act contains two parts. It is not only an act “to create sanitary districts,” but an act “to remove obstructions in the Des Plaines and Illinois rivers.” The first part of the title is general; the second part is local and special. Undoubtedly all those portions of the Act, which relate to the general subject of organizing sanitary districts, naturally range themselves under the first part of the title. If the title of the Act was simply “An Act to create sanitary districts” and nothing more, then it would be easy enough if the Act were valid in other respects, to retain so much of it as provides for the creation of such districts, and declare so much of it as provides for the construction of a navigable stream to be void. But is it not true that the provisions concerning a navigable water-way are expressed in the second part of the title, which designates the law as an Act “to remove obstructions in the Des Plaines and Illinois rivers ?” If the second part of the title covers and includes -such provisions so that they must be regarded as being germane thereto, how can they be rejected or declared to be void ? It is only the subject that is not expressed in the title—not the subject that is expressed in the title—which can be declared to be void.
If each part of this title expresses a different subject, and if each of the two subjects embraced in the Act is expressed in one or the other of such parts of the title, then it would follow that the whole Act must fall. The doctrine is thus stated in Cooley on Limitations (5th ed. top page 178): “But if the title to the act actually indicates, and the act itself actually embraces, two distinct objects when the constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other.”
I think that the second part of the title was designed to express the subject of constructing a navigable waterway as embraced in the body of the Act. The popular understanding of the object of removing obstructions from rivers is to make them navigable, or to prevent interference with navigation already existing. Such certainly is the meaning of much of the legislation of Congress in regard to rivers and harbors and navigable streams. Moreover, the provision in regard to removing obstructions from the Des Plaines and Illinois rivers is found in section 23 of the Act, and that section is the one that provides for the construction of a channel of such size and capacity as is necessary, by the terms of section 24, to constitute a navigable stream.
But I do not rest my opinion as to the invalidity of this Act solely and alone upon the fact that the two subjects embraced in it are expressed in its title. There are other and graver objections, which are set forth hereafter and in the dissenting opinion in Wilson v. The Board of Trustees, supra.
If it be admitted however that the Act in reality has but one title, that the second part thereof is a mere amplification ■ of the first part, and that the removal of obstructions in the rivers in question is necessarily involved in the creation of a sanitary district, upon the theory that such removal is necessary to make a current strong enough to carry off the drainage and sewage, and thereby prevent injury to the public health, yet, even under this view, all that part of the Act that relates 4 ■to the second subject embraced in it, that is to say, to the construction of a navigable water way and the building and managing of docks and water-power, together with all the provisions in regard to borrowing money or raising the same, by general taxation, or special assessments, for the purpose of constructing such a navigable waterway, or the docks thereon, or the water power therein, must fall to the ground as constituting a subject that is not embraced in the title.
The provision in section 7, which gives the State a right to require a portion of the funds, derived by a sanitary district from its water power, docks or wharfage, “to be paid into the State Treasury to be used for State purposes, ” is unconstitutional for another reason besides that already stated. It compels the people of one class of districts to pay more than their share of the burdens of the State government to the relief of the balance of the State, and thus violates the principle of uniformity required by section 1 of article 9 of the constitution.
The provision in section 1 of the Act as to the mode of •appointing the hoard of commissioners, who determine the boundaries of the district, is unconstitutional.
Section 1 provides that 5000 legal voters resident within -the limits of the proposed district may petition the county •.judge of the county in which they reside to cause the question to be submitted to the legal voters of such proposed district ■whether they will organize as a sanitary district under the Act. The petition must be addressed to the county judge; it must ■contain a definite description of the territory intended to be embraced in such district, and the name of the proposed district. Upon filing the petition with the county clerk, the county judge is required to call to his assistance two judges of the Circuit court, and such judges shall constitute a board of commissioners with power and authority to consider the boundaries of the proposed district “whether the same shall be described in such petition or otherwise.” At the meeting of the board 'the county judge is to preside; all persons in the proposed •district shall be heard touching its location and boundary and •may make suggestions regarding the same; the commissioners, after hearing “statements, evidence and suggestions shall fix and determine the limits and boundaries” of the proposed district, “and for that purpose and to that extent may alter ■and amend such petition.” After such determination by the ■commissioners “or a majority of them,” the county judge shall submit to the legal voters of the proposed district the question •of its organization and establishment “as determined by said commissioners. ”
The petition is addressed to the county judge alone. It invokes the action of no one but the county judge. It must be filed in the office of the county clerk. The county judge is required to submit the question of organization to the voters. The county judge is to cause a statement of the result of the ielection to be spread upon the records of the county court. .But the issues involved in the proceeding begun by the filing of the petition are not to be determined by the county judge, but by another and entirely different tribunal, namely: a tribunal consisting of the county judge and two judges of the Circuit Court. The county judge does not exercise his own independent judgment upon the matters presented to him, but-it is made his duty to call to his assistance two judges of a' different grade, and having in most respects a different jurisdiction from that possessed by his own court. He may be-deprived of any voice in fixing the boundaries of the district, because the two circuit judges, being a majority of the board of three, may overrule his views altogether. The circuit judges, instead of assisting him in his judgment, may substitute their own judgment for his.
The tribunal clothed with power to fix the boundaries -must decide whether the proposed district contains an area of contiguous territory within one county, whether such area contains-two or more cities, towns or villages, whether it is so situated that the maintenance of a common outlet for drainage will conduce to the preservation of the public health, whether all the territory in the proposed district is situated within the-limits of a city, incorporated town or village or within three-miles thereof. In determining these questions the tribunal must hear evidence, but it may fix boundaries for the district different from those named in the petition.
What is the nature of the duties thus imposed upon the-county judge ? Are they legislative, or judicial, or ministerial, or political, or administrative? If they are legislative, as-amounting to the creation of a municipal corporation, they cannot be exercised by the county court, because, by section 3-of the constitution, “the powers of the government of this-State are divided into three distinct departments—the legislative, executive and judicial; and no person or collection of persons, being one of these departments shall exercise any power properly belonging to either of the others, except as-hereinafter expressly directed or permitted. ” (The City of Galesburg v. Hawkinson, 75 Ill. 152). If these duties are judicial in character the county court cannot delegate them, nor can the legislature authorize the county court to delegate them, to other parties. (Cooley on Cons. Lim. 5th ed. top page 506 ; Hall v. Marks, 34 Ill. 358; Hoagland v. Creed, 81 id. 506; 83 id. 601; Meredeth v. The People, 84 id. 479). If they are merely ministerial or administrative, they cannot be delegated, because where a court is compelled to perform a ministerial act, such act is so performed as an incident to the exercise of judicial power. (Owners of Lands v. The People ex rel. 113 Ill. 296).
But independently of the question of delegation of power, the judges of the Circuit Courts of this State cannot be called upon to perform official duties, whether of a judicial or ministerial character, at the beck and call of a county judge. Nor is there any authority in the constitution for the formation of a tribunal composed of a county judge and two circuit judges, acting together in the manner prescribed by this Act. Section 1 of Article 6 of the constitution provides that “the judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns.” But the judicial power vested in a court of a certain class must be exercised by that court sitting alone, and not in combination with some other court of a different class. The constitution contemplates official action by the Supreme court as such, by the circuit court as such, and by the county court as such, and not by boards made up of members selected from these different courts, and especially when such selection is made by the judge of one only of such courts.
Certain duties, which are ministerial or administrative and not strictly judicial, are sometimes imposed upon courts. (The People v. Morgan, 90 Ill. 558; Owners of Lands v. The People, supra;) But in such case the court is one already existing and organized in a constitutional way. The legislature has no more right to create a new tribunal, by the fusion of existing judicial tribunals, for the performance of ministerial acts, than it has to form such tribunal for the exercise of judicial power.
By the provision now under consideration, the circuit judges who are to assist the county judge, are not even designated by the act itself, but their designation is left to the arbitrary dictation of the county judge. The county judge of a particular county may call upon any two judges residing anywhere in the State to come to his side to assist him in fixing the boundaries of a sanitary district. The constitution requires circuit judges to be elected by the people, supreme court judges to be elected by the people, county judges to be elected by the people, but the Act now under consideration assumes to authorize a county judge to create a judicial tribunal by'his own fiat and independently of any action by the people. This provision of the Act violates the principle of uniformity required by section 29 of article 6 of the constitution, which provides that “all laws relating to courts shall be general and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgment and decrees of such courts, severally, shall be uniform. ”
Here, a certain class of duties, or a certain kind of jurisdiction, is imposed, not upon all circuit judges in the State, but upon such of them as may happen to be chosen by a county judge in a particular class of counties. It makes no difference that the act to be performed may not be altogether judicial in its character. It will not be contended that the appointment of a stenographer by a circuit judge is an exercise of strictly judicial power. And yet we held in The People v. Rumsey, 64 Ill. 44, that a law authorizing the appointment of stenographers by the circuit courts of Cook county, where the other circuit courts of the State had no power to appoint such officers, was in violation of section 29 of article 6. It is contrary to both the letter and the spirit of the constitution to clothe a, judge of a court of one grade or class with the authority to pick out judges of another grade or class, and assign them to the performance of duties of a particular kind, or call upon them to assist him in the performance of his own duties.