also dissenting:
I do not concur in the construction adopted in the opinion that clause 6 of section 25 of the Counties act prevents the levy of any tax under it where the people of the county, prior to the passage of the act, voted any amount of tax for State aid roads, nor in the conclusion of the opinion that such construction does not render the clause void as contravening section 22 of article 4 of the constitution, preventing the passage of local or special laws regulating county affairs.
Considering first the effect of the construction adopted in the opinion, I am of the opinion that such construction necessarily renders said clause unconstitutional. A local law is one that relates only to a territorial portion of the State, and a special law is one granting some special privilege, right or immunity or imposing some particular burden upon but a portion of the people of the State. (People v. Wilcox, 237 Ill. 421.) While counties may be classified where a reasonable basis for the classification exists, the limitation in this clause, relating, as it does, to counties possessing powers equal in all other respects to any other county but which before the passage of the act had voted taxes for State aid road purposes, places those counties, if the construction of the opinion be the cofrect one, in a class where they are deprived of powers, rights and privileges conferred on other counties, — and this without regard to the amount of the tax voted by them and without opportunity of choice. Such, in my opinion, is not a reasonable basis for classification. In Kennedy v. McGovern, 246 Ill. 497, this court considered an act which made highway commissioners in counties not under township organization personally liable for injury to persons or property by reason of their failure to keep the highways of the district in repair but imposed no such condition in counties under township organization. While the statutes provide for all counties the right to choose whether they will adopt or abolish township organization, the act was held invalid as special legislation. In People v. Fox, 247 Ill. 402, an act providing that certain road and bridge taxes should be paid over to the city treasurer in cities of 20,000 inhabitants but not applying to villages or cities of less population was held void for the reason, as stated by the court: “The fact that a municipality has adopted the form of government provided for cities affords no reasonable basis for conferring upon it the benefits and privileges withheld from villages of equal population, differing from cities only in that they have not thought proper or desirable to incorporate as cities.” Numerous counties prior to the passage of the clause of the Counties act in question had voted State aid road taxes at rates ranging from five cents upward, and I can see no reasonable basis for putting them into a class which is denied the right to levy any part of the twenty-five cent State aid road tax authorized under section 25.
I am further of the opinion that such construction of the act is not warranted and not in accordance with the intention of the legislature. The fact that several counties had voted this tax must have been within the knowledge of that body when the amendment was passed. The system of improved roads is constantly increasing in mileage in each county, and to say that 'the legislature intended that because the people of a county had previous to the passage of the amendment voted a small amount of money to provide for the small mileage then in such county they should not have the opportunity to meet the demand for an increased mileage under the broader system of highway legislation of the State, is to ascribe to the legislature an intention to work a hardship not only on the people of the county voting this small tax but on the road-users throughout the State who have occasion to use such roads. Such could not have been the legislative intention. It is a well-settled canon of construction that if a law may be so construed as to render it unobjectionable to the provisions of the constitution, it is the duty of the court to place that construction upon it. The legislative intention here is shown by the fact that on the date on which this amendment was passed, and by the same act, section 27 of the Counties act was so amended as to' exclude State aid roads from the limitation for county purposes. At the same time and for the same purpose a like amendment was made of section 121 of the Revenue act. It seems clear to me that by these amendments the legislature intended that all the counties of the State should have a right to levy a State aid road tax, in addition to the county tax permitted, up to the amount of twenty-five cents on each $100 valuation, and that the language, “unless additional taxes * * * have been otherwise authorized by a vote of the people of the county,” should be construed as a limitation on the amount of tax which such county might levy, rather than a denial of the right to levy any taxes at all. It seems clear that this clause of section 25 can be construed as limiting the power of the county board to a levy of State aid road taxes not greater in amount than that part of twenty-five cents on the $100 valuation not already voted by the people of the county, and that it should be so construed.