delivered the following dissenting opinion:
The main objection to the confirmation of the assessment, as filed by the appellants, relates to the constitutionality of the act of June 14, 1897, under which the present proceeding was had.
I think that the act of June 14,1897, creating a board of local improvements, is unconstitutional as being in violation of section 9 of article 9 of the constitution of 1870. The city of Chicago, where the present proceeding was instituted, has a population of more than 25,000; and the validity of the act need only be considered, so far as it applies to cities of that class.
The proceedings for the improvement, sought to be made by the present suit, were begun upon the motion of the board of local improvements, and not by virtue of any petition therefor, filed in accordance with the terms of said act. Indeed, we have held, that the provisions of the act, which require a petition, signed by the owners of a majority of the property, to be presented, before the council can pass an ordinance for a local improvement, apply only to cities, having a population of less than 25,000, and not to cities having a population of more than 25,000. (City of Bloomington v. Beeves, 177 Ill. 161; Patterson v. City of Macomb, 179 id. 163). Section 7 of the act of June 14, 1897, “concerning local improvements,” provides, that all ordinances for local improvements to be paid for wholly or in part by special assessment or special taxation, shall originate with the board of local improvements. Said section 7 confers upon the board the power to originate a scheme for any local improvement to be paid for by special assessment or special taxes, either with or without a petition. ' The same section provides that, if, upon the hearing referred to in the last sentence thereof, the board shall deem the improvement desirable, they shall adopt a resolution therefor, and prepare and submit an ordinance therefor, as thereinafter provided. Section 8 of the act provides that, after the hearing therein referred to is had, the board shall cause an ordinance to be prepared for the improvement to be submitted to the council, or the board of trustees, as the case may be; and that such ordinance shall prescribe the nature, character, locality, and description of such improvement, and shall provide whether the same shall be made wholly or in part by special assessment or special taxation of contiguous property; and if in part only, shall so state. Section 9 provides that, with any such ordinance presented by said board to the city council shall also be presented a recommendation of such improvement by the said board, signed by at least a majority of the members thereof. The same section provides that this recommendation shall be prima facie evidence, that all the preliminary requirements of the law have been complied with, etc. Section 10 of the act provides that, together with the ordinance and recommendation referred to in section 9, there shall be presented to the city council, or board of trustees, an estimate of the cost of such improvement, itemized so far as the board of local improvements shall think necessary, etc. Said section 7 also provides, that the board shall cause an estimate of the cost of said improvement to be made in writing by the public engineer.
It thus appears, that the act confers extraordinary powers upon the board of local improvements in regard to the making of such improvements by special assessment or special taxation. The board is authorized to give notice, and have a public hearing upon the subject of the necessity of the proposed improvement, the nature thereof, or the cost thereof as estimated; but the board is not obliged, by reason of such hearing, to abandon or modify the scheme resolved upon by it; on the contrary, it may, in spite of the hearing, adhere to such scheme. After authorizing the board to have the hearing aforesaid, and to have an estimate of the cost of the improvement made, and after conferring upon it the power to originate a scheme for the local improvement to be paid for by special assessment or special tax, and to originate the ordinance therefor, and draft, and submit such ordinance to the common council, the act then provides in section 5 as follows: “No ordinance for any local improvements, to be paid wholly or in part by special assessment or special taxation, shall be considered or passed by the city council or board of trustees of any such city, village, or town, unless the same shall first be recommended by the board of local improvements provided for by this act.”
It is manifest, that this act deprives the common- council of all discretionary power in the matter of making local improvements by special assessment or special taxation. The common council might, perhaps, have the rig'ht to refuse to pass an ordinance submitted to it by the board of local improvements. At any rate, there is no prohibition against the refusal on the part of the common council to pass such an ordinance. But, if it passes any ordinance, providing for a local improvement, to be paid for by special assessment or special taxation, it can only pass such ordinance, as is submitted to it by the board of local improvements. The common council is forbidden not only to pass, but also to consider, any ordinance for a local improvement, unless the same is first recommended by the board of local improvements. The act robs the common council of the power to take any independent action in the matter, and makes the council the mere agent of the board of local improvements. The common council is reduced by the act to a mere machine for the execution of the will of an outside force, to-wit: the board of local improvements. Substantially, and in effect, the act substitutes the board of local improvements for the common council in all matters, relating to the making of local improvements, which involve the exercise of judgment and discretion. The necessity for the improvement,- and the nature of it, and the cost of it, are all determined in advance for the common council by the board of local improvements. Even the ordinance for the improvement is framed in advance by the board of local improvements, and submitted to the common council without the power in the latter to change or modify the ordinance, or exercise its own will or judgment in relation thereto, except, as has already been stated, so far as it may have the right to refuse to pass any ordinance.
Section 9 of article 9 of the constitution provides that “the General Assembly may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise.” By this provision of the constitution only the “corporate authorities” of cities can be vested by the legislature with power to make local improvements by special assessment or special taxation. As the act of June 14, 1897, vests the board of local improvements with the power to make such improvements by special assessment or special taxation, such power is not rightfully conferred, unless the board of local improvements, provided for in the act, can be regarded as a corporate authority of the city, in which it performs its functions. Technically, the common council, which is undoubtedly a corporate authority of the city, makes the local improvement provided for in the act, because it passes the ordinance for the improvement. But, inasmuch as it passes such an ordinance only, as is prepared for it by the board of local improvements, and does so at the dictation of the board, the board, and not the common council, is really, and in effect, the authority, which makes the improvement.
The question then arises, whether the boards of local improvements, created by the act in question, are “corporate authorities” within the meaning of section 9 of article 9 of the constitution.
Who are the “corporate authorities” of cities, towns, and villages, whom the constitution clothes with the power to make local improvements by special assessment, or special taxation of contiguous property, or otherwise? They have been defined by this court in many decisions. The case of Cornell v. People, 107 Ill. 372, reviews the earlier decisions upon this subject, and makes the following statement, as the result of such review: “The "corporate authorities, intended by the language of the constitution, upon whom the power of taxation was conferred, are such municipal officers as have been elected directly by the0 people of the district, or appointed in some mode to which the people of the district have given their assent.” This language was used in reference to a similar provision of the constitution of 1848, but the opinion in Cornell v. People, supra, proceeds to say: “Section 9 of article 9 of the constitution of 1870 has received the same construction that was placed upon the constitution of 1848 on the same subject. (Updike v. Wright, 81 Ill. 49; Dunham v. People, 96 id. 331). In the last case cited it is said: ‘The clause in the constitution of 1870, adopted in the light of this construction, must be construed in the same manner as was construed the kindred clause in the constitution of 1848.”’ In Cornell v. People, supra, the following language, used in Hessler v. Drainage Comrs. 53 Ill. 105, was quoted with approval: “By the term ‘corporate authorities’ must be understood those municipal officers who are either directly elected by the people, or appointed in some mode to which they have given their assent.” In Cornell v. People, supra, the South Park Commissioners, though appointed by the circuit court and not elected by the people, were held to be “corporate authorities,” because the people to be affected by the Park act had adopted it by their votes.
Later, in Wetherell v. Devine, 116 Ill. 631, certain election commissioners, although they were not elected by the people of the city of Chicago, were yet held to be such “corporate authorities,” as were contemplated by section 9 of article 9 of the constitution, because the law, providing for their appointment, was adopted by the votes of the people of the city; and such commissioners were held to be appointed in a mode, to which the population to be taxed had given their assent. In Wetherell v. Devine, supra, we said: “The question arises, who are the ‘corporate authorities’ referred to in the constitution? We have defined them to be those authorities, who are either directly elected by the population to be taxed, or appointed in some mode to which they have given their assent.”
Again, in Snell v. City of Chicago, 133 Ill. 413, we said: “The constitutions of 1848 and of 1870 have both been interpreted by this court to mean, that the legislature has no power to grant to any other than the corporate authorities of a city the right to assess and collect taxes, and that such taxation must be for corporate purposes; and that ‘the corporate authorities’ are those, who are either directly elected by the people of the municipality, or appointed in some mode, to which they have given their consent.” The same doctrine is also announced in Wilson v. Sanitary District 133 Ill. 443.
It is clear that the members of the board of local improvements, provided for by the act of June 14, 1897, are not “corporate authorities” within the meaning of the constitution. By the terms of the act, the board of local improvements, in cities having a population of 25,000 or more, consists of five members, to-wit: a commissioner of public works, a superintendent of streets, a superintendent of sewers, a superintendent of special assessments, and a city engineer. These five members, constituting the board, are appointed, so far as the city of Chicago is concerned, by the mayor of the city. They are not officers elected by the people, of the city. Nor is the act of June 14, 1897, which provides for their appointment, an act which whs adopted by the votes of the people of the city of Chicago. The act itself contains no provision for the submission of the question of its adoption to the people of any of the cities, towns, or villages therein named. The first section of the act provides, that it shall apply only to such cities and villages, as then are, or thereafter shall become, incorporated under the “City and Village Act,” and to all cities, villages, and incorporated towns which had theretofore adopted article 9 of the “City and Village Act,” “or shall hereafter adopt this act as herein provided.” Section 97 of the act of June 14, 1897, provides as follows: “Any city or incorporated town or village may, if it shall so determine by ordinance, adopt the provisions of this act,” etc.
The only method of adoption prescribed by the act is an adoption thereof by ordinance; but there is no provision for the adoption of the act by the votes of the people.
Therefore, the members of the board of local improvements in cities having a population of 25,000 or more are not “corporate authorities” within the meaning of the constitution, because they are appointed by the mayor, and not elected by the people; and because the act, providing for their appointment by the mayor, has never been adopted by the citizens of any city in the State, and contains no provision for such adoption by the votes of the people of any city. It necessarily follows, as it seems to me, that the act of June 14, 1897, is unconstitutional in the respects above indicated, and that the court below erred in not sustaining the objection made to the confirmation of the assessment upon this ground.
Even if the validity of the act should be considered with reference to cities having a population less than 25,000, it cannot be said that the requirement as to á petition signed by a majority of the property owners relieves the. act of its unconstitutionality, or has any bearing upon the question of its validity. The petition merely puts the taxing body in motion, but has nothing to do with the control of its discretion, after it has been put in motion.