delivered the opinion of the court:
In each of the.se cases a petition was filed in the circuit court of Cook county against the plaintiff in error, county clerk of said county, alleging that the provision of section 49 of the act for the assessment of property, in force July 1, 1898, limiting the aggregate of all the levies certified by the municipalities of said county to said county clerk to five per centum, under which the county clerk claimed the right to act, was unconstitutional and void, and praying for a writ of mandamus to compel him to compute the rates and extend the taxes due the relators in accordance with the law. In one case the petition was filed on the relation of the city of Chicago and in the other on the relation of the board of education of said city. The defendant interposed a demurrer to each petition, which was overruled, and he standing by the same, judgments were entered and writs ordered compelling him to compute and extend said taxes in accordance with the prayers of the petitions. Writs of error were sued out from this court to review the judgments, and the causes have been heard together.
In the case of People ex rel. v. Knopf, 183 Ill. 410, we considered the same question raised in these cases as to the validity of said provision of section 49, and were reluctantly compelled, on the clearest grounds, to hold it unconstitutional and void, as a direct and palpable violation of the prohibition against 'special and local laws. It is not necessary to repeat here the well-worn and fundamental rules there stated, but counsel for plaintiff in error have presented some arguments which they insist have not been before presented or considered and which they claim are sufficient to sustain the act, and these will receive due consideration.
One of these arguments is, that the prohibition of the constitution against local or special laws does not apply where the conditions, circumstances or situations of municipalities differ, so as to require or permit a classification of such municipalities; that the question whether the county of Cook, including its various municipalities, is different in conditions, circumstances or situations from other counties, is one which the legislature must determine for themselves as a fact before they legislate, and in the ascertainment of the fact may adopt their own rules of evidence; that the legislature decided that there was such a difference in the circumstances and situations of counties having a population of over 125,000, when compared with other counties of the State, as required legislation applicable only to municipalities in such counties, and that their decision of that question cannot be reviewed by this court. The effect of the argument is, that the legislature are the final judges of the meaning and effect to be given to the constitution, and that it shall be binding on them only so far as they decide it shall be. It is true that under the general provision that a special or local law shall not be passed where a general law can be made applicable, the existence of the specified condition may be determined by the legislature. Under that provision a special law may be enacted where a general law cannot be made applicable, and that preliminary question may be decided by the legislature. (Owners of Lands v. People, 113 Ill. 296.) As to certain subjects, however, the People, in the fundamental law, made a hard and fast rule, not subject to any condition or exception, prohibiting the enactment of special or local laws. Section 22 of article 4 of the constitution prohibits the General Assembly from passing local or special laws in certain enumerated cases. As to those subjects the prohibition is absolute, and not conditional. Among them is, “incorporating cities, towns or villages, or changing or amending the charter of any town, city or village,” which is violated by section 49. It was never intended tó put a law passed in violation of the prohibition beyond the power of review by the courts, and the question whether a particular law upon such a subject is within the prohibition is for the courts, and not for the legislature. (Sutherland on Stat. Const. sec. 117.) Within the enumerated subjects Cook county cannot be singled out for legislation on the ground that its circumstances and conditions are different from other counties, nor can the city of Chicago be singled out and separated from other cities of the State and made the subject of special legislation. (Devine v. Board of Comrs. 84 Ill. 590; Kingsbury v. Sperry, 119 id. 279; People v. Meech, 101 id. 200; People ex rel. v. Board of Trustees, 170 id. 468.) If the legislature can pass a law for Cook county, as contended, it could single out for special legislation each county in the State other than Cook county, and each city as well as the city of Chicago, on the ground of alleged differences in circumstances and conditions,—and this would be to nullify the constitutional provision. The legislature may, however, in the enactment of general laws, classify counties and other municipalities, and we have sustained legislation relating to counties classified on the basis -of the population of counties, laws relating to cities where the classification was based on the population of cities, and laws affecting towns where towns were classified according to population. In any case, it cannot be that the legislative body on which an absolute limitation is imposed shall finally determine the question of such limitation, but when the question arises in a judicial proceeding the court must compare the law with the fundamental law, and if it is found to be in conflict, must enforce the limitation. Judge Cooley, in speaking of this power, says: “The right and the power of the courts to do this are so plain, and the duty is so generally,—we may now say, universally,—conceded, that we should not be justified in wearying the patience of the reader in quoting the numerous authorities on the subject.” (Cooley’s Const. Lim. 45.) Indeed, counsel, at the conclusion of their argument on this point, admit that, manifestly, if there is no distinction in the conditions and circumstances of the municipalities situated in Cook county from those situated in other counties, the legislature would have no power or jurisdiction to determine that there was, but they say that if there is a difference the court should not go into an examination of the extent of such difference.
Another argument is based upon the proposition of counsel stated as follows: “The legislature, by section 49, did not attempt to take away any power from any individual municipality to levy a tax at a certain rate as established by the general law. Section 49 does not touch that power, but it simply undertakes to provide that, in making such assessment, if the aggregate rates which were permissible under the general law (not the individual rates) should exceed five per cent, that then such aggregate rates must be reduced to five per cent.” It is said, in substance, that the powers of the various municipalities to levy taxes up to a certain rate are not affected; that they may levy taxes and certify their levies to the clerk, but the" law simply provides that the clerk shall not put the taxes on the books, and merely interferes with and prohibits the collection. The argument is, that therefore the provision is not obnoxious to the constitutional prohibition, because it does not amend any charter or repeal any charter power. Section 1 of article 8 of the general Incorporation act, under which the relator, the city of Chicago, and many municipalities in Cook county, are organized, provides that the city council or boards of trustees may, by ordinance, levy the total amount of appropriations, to be" collected from the tax levy of the fiscal year, not exceeding two per cent of the valuation, exclusive of the amount levied for the payment of bonded indebtedness or interest thereon, upon all the property subject to taxation within the city; that a certified copy of such ordinance shall be filed with the county clerk, and that he shall extend the tax upon the collector ’s books. Section 2 provides that the tax so assessed shall be collected and enforced in the same manner and by the same officers as State and county taxes, and shall be paid over to the treasurer of the city or village. To say that the provision of section 49 that the county clerk shall not extend the tax certified to him but shall reduce it pro rata, so that the aggregate, with all other taxes, shall not exceed five per. cent, and that no more shall be collected, is so plainly an attempt to amend this charter provision that no argument can make it plainer. The town of Cicero, in Cook county, is organized under a special charter, and is not subject to the limitation of two per cent in the general Incorporation act. (Town of Cicero v. McCarthy, 172 Ill. 279.) The restriction of section 49 is not only an attempted amendment of the general Incorporation act as to cities and villages located in certain counties, but also of the special charter of said town. The town of Cicero is within the terms and the necessary operation of the act which attempts to add to such charter the restriction in question.
Again, it is insisted that there are actual grounds of difference between the municipalities or taxing districts in Cook county and those outside of that county, which support the restriction. The first of these is, that in Cook county there are a greater variety and number of different taxes, and of corporate authorities authorized to levy taxes, than in other portions of the State. In that county there is taxation by the sanitary district and for the public parks, and taxation to pay the indebtedness for the Columbian Exposition, which other portions of the State do not have to pay. It is urg'ed that these facts furnish a ground for the restriction upon the aggregate rate. If that fact could have any effect, it seems that it would be a reason for allowing a larger aggregate to meet these additional requirements and to support the additional burdens, and that it would furnish no ground for reducing such aggregate. Surely, it is no reason for restricting the taxes below those common to the municipalities of the State. Another alleged ground is, that the taxable wealth of the municipality of Cook county is much greater than outside of that county. The fact does not appear from the record, but counsel give figures in their brief from which it appears that the equalized valuation of property in Evanston for the purpose of taxation averages $195.30 per capita, while in the city of Aurora it is $192.79, in the city of Quincy $113.35, and in the city of Joliet $105.71. If these figures are accepted, they show that there is no substantial difference between Evanston, in Cook county, and Aurora, in Kane county, and that the act is special; and by the same reasoning the city of Aurora could be singled out for separate and distinct legislation, on the ground that the equalized valuation per capita is nearly double that of the city of Joliet. The statement destroys the argument. By the same process of reasoning all the counties and cities in the State might be separated. The county or city having the next largest valuation to Cook county could be separated from the others and made the subject of special law. But a conclusive answer to both these supposed grounds of difference is, that if the number of taxing authorities or the taxable wealth of the municipalities would justify different legislation, the act is not based on any such grounds of difference. It proceeds on no supposed difference of that kind, but necessarily excludes it from the classification. It applies equally to every county of a certain population, regardless of wealth, and to every municipality or taxing district in such county, regardless of the population, wealth or any other characteristic of the municipality, or taxing district, except its location in such a county. It assumes to regulate the powers of small municipalities with a population of 1500 and the city of Chicago with a population of 2,000,000. The legislature did not provide that districts with a certain number of taxing authorities or with certain wealth should be included, and did not bring or attempt to bring within its operation all municipalities or taxing districts in the, same situation or circumstances in that regard.
It is also said by counsel that the legislature had in view what they say is a notorious fact-—that in Cook county vast amounts of personal property had never been returned by the owners and had gone entirely untaxed; that to induce the people to be honest, and not to make false returns of their taxable property but to bear their just portion of the public burdens, the legislature might properly provide that they would not have to pay more than a certain rate in the aggregate; that it was known that any truthful return of property in that county would enormously increase the assessment, and that these facts furnish a natural and reasonable basis for this special law. It is further asserted that the legislature enacted the provision in question as a promise to the tax-payers of that particular county that if they would make honest returns of their property they should have the benefit of the limitation; that the offer was largely accepted and the anticipated result realized, and that the courts should adhere to the bargain. None of these statements have any foundation in the record, and if they had, the reasoning is not applicable on the question of the constitutionality of the statute, which is the only question before the court. The reasons which counsel say operated on the minds of the legislators in enacting the statute can not be ground for holding valid a law passed in violation of a constitutional provision. Whatever merit there may be in an argument that tax-payers of a particular county have been accustomed to make false returns of their property and to escape the burdens of taxation, which the law contemplates shall fall equally upon all in proportion to the value of their property, and that they have been deceived and betrayed into truthful disclosures and obedience to the law because of the supposed bargain, there is no evidence whatever of the facts so alleged and insisted upon by counsel. We are unable to consider such argument or make it a basis for our decision. If the law is local and special in its character and within the enumerated cases prohibited by the constitution, we must declare it invalid.
These are all the arguments in support of the provision, and none of them are sufficient to sustain it.
In awarding the writ in the case of the board of education, the circuit court deducted from the amount levied by the city council for building purposes the sum of $625, - 500, and the defendant in error in that case assigns a cross-error upon that action of the court. The board of education is required to communicate to the city council of the city of Chicago respecting the schools and school funds and the management thereof, and the law authorizes the city council, in making its appropriations for school purposes and levying taxes, to levy a tax not exceeding two and a half per cent for educational and two and a half per cent for building purposes. The board of education in this case made a requisition for the fiscal year for educational purposes (less the revenue from the school fund) of $5,524,161.17, which was appropriated and levied by the city council, and about this tax there is no dispute. The board also made requisition for $2,000,000, which purported to be for building purposes and other expenses which, under the law, are not building purposes. The council made the appropriation of $2,000,000 accordingly, and included it in the ordinance levying taxes in a lump sum. The court made an investigation of the separate amounts which, by the record of the board of education, went to make up the $2,000,000, and allowed that portion which was for the purchase of school house sites, new buildings and permanent improvements and pro rata of loss and cost of collection, but deducted the other items amounting to said sum of $625,500. The argument in support of the cross-error assigned is, that the city council had power to levy a tax not exceeding two and a half per cent for educational purposes alone; that the entire tax levied for educational and building purposes was less than said rate of two and a half per cent, and tjiat therefore the items for educational purposes included in the total for building purposes are valid.
It is true that the council had power to levy as much as the whole amount which was levied, and might have levied it for educational purposes alone if required for that purpose, but it was not all required or levied for that purpose. The statute authorizes a levy for two separate purposes, and requires the amount to be levied for each to be levied separately in specific sums. The certified copy of the ordinance was the only warrant to the defendant for extending the tax, and some of the items included in the gross sum for building purposes show for themselves that they were not for such purposes, and there was no way for the clerk to separate them. Under such a levy the defendant was not required to extend any of the tax of $2,000,000. The ordinance showed that a part of that sum was for general repairs, incidental expenses and other things not included in building purposes. The ordinary expenses of the school and ordinary repairs are included within the tax levied for educational purposes, and the tax for building purposes is to provide means necessary to meet the building of school houses. (O'Day v. People, 171 Ill. 293.) The relator could not have compelled the defendant to extend any portion of the tax where the levy furnished no means of showing what was legal and what was not, and the action of the court in making the investigation and compelling a levy of that portion which was actually intended for building purposes was in their favor. Some of the items excluded may have been fairly included under the head of building purposes, but we do not consider that question, for the reason that the court might properly have refused relief as to the whole. We cannot assent to the proposition that because the board of education might have levied a tax which would have been valid, a tax not authorized by the statute should be held valid. To say that a city council or board of education may commingle the educational and building funds, or levy sums for one purpose and apply them to another, would defeat the intention of the statute and be disastrous to the tax-payer.
The judgment of the circuit court is affirmed.
Judgment affirmed.
Mr. Justice Magruder: I do not concur in all that is said in this opinion.