It is settled that the creation of a debt which must be discharged by the imposition or levy of a tax is essentially the same as the direct imposition of a tax. (People v. Block,276 Ill. 286; Morgan v. Schusselle, 228 id. 106; People v. Mayor, 51 id. 17.) I can not concur in the conclusion of the majority of the court that the indebtedness which the legislature has imposed upon cities for the payment of minimum salaries to firemen, without the consent of the corporate officers or the inhabitants of the municipalities, is not a debt for a corporate purpose. In my judgment the Firemen's Minimum Wage act is within the constitutional inhibition of section 10 of article 9 of the constitution, prohibiting the General Assembly from imposing taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes.
The framers of the constitution of 1870 deemed it wise to place restrictions on the taxing power of the legislature. To safeguard municipal corporations and, especially, the inhabitants of cities, towns and villages, the power to impose taxes for corporate purposes was denied not only to the legislature but to all persons other than the corporate authorities of the municipalities. One of the manifest objects of section 10 of article 9 is thus to prevent the financial destruction of cities, towns and villages by unrestrained imposition of taxes on them without the consent of the *Page 566 people of these municipalities, or their corporate authorities. Section 10 does not preclude the General Assembly from imposing any tax upon the inhabitants of a municipal corporation, but the prohibition is directed against the imposition of taxes for corporate purposes. The plan of the common law, particularly in its adaptation by this country, was to leave to the political subdivisions of the States the right to control and regulate their own affairs. This has always been most effective inasmuch as such subdivisions are in close touch with the needs and requirements of their citizenry as well as their own financial ability to provide for them. Conceding that today there are few activities of municipal government in which the State does not have an incidental or casual interest, an object of local government does not lose its dominant characteristic merely because the general public has some interest, remote or otherwise, in a particular activity. Here, the interest of the public at large, namely, the people of the State, is merely incidental and subordinate to the interest of the inhabitants of Springfield and other municipalities in the operation and maintenance of their fire departments. Since the municipal action primarily affects a locality rather than the State, such action is essentially local or municipal and a tax therefor is, necessarily, a tax for a corporate purpose.
The conclusion that the Firemen's Minimum Wage act does not contravene section 10 of article 9 of the constitution reduces immeasurably the protection hitherto afforded to municipalities by this salutary provision. There is no reason in logic or law for limiting the salaries of firemen to the classifications made by the act. Provisions for minimum salaries may as well be extended to villages and hamlets. Upon the authority of the decision in the present case, they may be compelled to employ firemen, pay them such salaries as the legislature desires and abolish their voluntary fire departments which, in some portions of the State, have long served a useful purpose. Hereafter, the purely local *Page 567 affairs of such communities can be subject to remote control. Is there anything that is not a public function within the contemplation of the decision rendered? So long as it can be said that the State is interested, whether primarily or remotely, its interference with local corporate affairs can be sustained. There is, therefore, no pure legal corporate functions of a city because all its functions can be controlled by the State if the legislature cares so to do. The right of home rule by cities is wholly obliterated. The deed of a city council is no longer apparent. The right of the citizens of a city to have its officers fix its budget within its income disappears and becomes a mockery. The obligations of the city become fixed by State legislation, and, in times of depressions such as we have so recently experienced, there can be no effective retrenchment by municipal corporations. No more justification for the State fixing minimum salaries of firemen exists than obtains for like legislation fixing minimum salaries for garbage collectors, street cleaners and plumbing inspectors of toilets. Certainly, efficiency on the part of those municipal employees bears as reasonable a relation to the protection of the public health as does the payment of minimum salaries to firemen to the promotion of the general welfare.
The corporate purposes of a particular municipal corporation must be determined largely by the nature of the corporation itself. Article 5 of the Cities and Villages act (Ill. Rev. Stat. 1937, P. 347) places control of the finances and property of cities and villages in councils in cities and the presidents and boards of trustees in villages. Sub-section 64 (par. 65.63) empowers them, "To erect engine houses, and provide fire engines, hose carts, hooks and ladders, and other implements for prevention and extinguishment of fires, and provide for the use and management of the same by voluntary fire companies or otherwise." One of the corporate objects of the city of Springfield, it necessarily follows, is the maintenance of a fire department for *Page 568 which the city may levy and collect taxes. An object of municipal action within the governmental powers of a city is clearly a corporate purpose within the contemplation of the constitution. Obviously, the fire department of Springfield is one of its own agencies, maintained for the benefit of the residents of the local community. Its operation and maintenance constitute the exercise of a municipal governmental function, a purpose germane to the objects of the city's creation and which has a legitimate connection with those objects and a manifest relation thereto.
This court in the case of People v. Kapp, 355 Ill. 596, in its opinion says: "As a resolution does not connote permanency, we cannot escape the conclusion that the fixing of salaries of the employees in the Springfield fire department was an executive or administrative act and not legislative in character. It was therefore not a proper subject for regulation by the electorate, as it is quite generally held in this country that the power to initiate legislation under statutes providing for the initiative and referendum in the conduct of municipal affairs does not extend to such functions of city government as are purely administrative in character." [Citing cases.]
The majority opinion accepts the argument advanced by appellees that since the operation and maintenance of a city fire department is a governmental function the legislature may compel a municipal corporation to perform any duty, when acting in its governmental capacity, although its performance creates a debt to be satisfied by municipal taxation. Four of the six cases cited,(People v. Board of County Comrs. 355 Ill. 244; St. Hedwig'sIndustrial School v. County of Cook, 289 id. 432; People v.County of Williamson, 286 id. 44, and Chicago, Milwaukee and St.Paul Railway Co. v. County of Lake, 287 id. 337;) were actions against counties. The limitation on legislative imposition of taxes upon municipal corporations for corporate purposes does not, however, extend to counties, townships and school districts.(Bolles v. Prince, 250 Ill. 36; Raymond v. Hartford *Page 569 Fire Ins. Co. 196 id. 329; Wetherell v. Devine, 116 id. 631;Braun v. City of Chicago, 110 id. 186.) Although the statement of the principle relied upon by appellees in the foregoing cases in no way impairs the correctness of the judgments rendered, thedicta were unnecessary to the decisions, as sections 9 and 10 of article 9 are not applicable to counties. In People v. City ofChicago, 351 Ill. 396, the contention was made that section 14 of the Probation act, to the extent it fixed minimum salaries of probation officers for the payment of which the city council was required to make appropriations, was in conflict with sections 9 and 10 of article 9. Obviously, the establishment or maintenance of a judicial system, and, in particular, a probation system, has no relation to the corporate affairs of a municipality. On the contrary, article 6 of our constitution confers upon the legislature plenary power to establish and provide for a judiciary and a system of justice. People v. City of Chicago,supra, it is submitted, is not decisive.
City of Chicago v. Manhattan Cement Co. 178 Ill. 372, cannot avail the appellees. It held that "An act to indemnify the owners of property for damages occasioned by mobs and riots," in force July 1, 1887, did not create a debt against the city of Chicago without its consent, within the meaning of section 10 of article 9. The court, as early as People v. Mayor, supra, construing section 5 of article 9 of the constitution of 1848, had pointed out that extraordinary situations might exist where the General Assembly, without the consent of the corporate authorities, could impose taxes, local in their character, if required by the general good government of the State, because such taxes would not be merely for corporate purposes, "as if one of the cities of the State should be insurgent, requiring the interposition of the military power, it will not be denied the State, on quelling the insurrection, could impose taxes upon the city to defray the expenses of a resort to military power. So, if the police department of a city should fail to furnish reasonable security to life and property, the State, undoubtedly, *Page 570 might provide such force, and assess the city for the expense." The "Mob law" of 1887 fell within the exception described and was held to be a mere police regulation for the better government of the State. Conversely, where a city is performing its delegated duty in the first instance, and the State itself is not involved, the legislature lacks authority to create a debt or impose a direct municipal tax for a corporate purpose. (Wider v. City ofEast St. Louis, 55 Ill. 133; Lovingston v. Wider, 53 id. 302;People v. Mayor, supra.) In the present case the record fails to disclose that prevailing rates of compensation to firemen are inadequate to properly man the fire department of any city to which the Firemen's Minimum Wage act applies.
To sustain the validity of the challenged statute, the majority opinion places reliance upon the familiar rule that the operation and maintenance of the fire department by a municipal corporation is an exercise of a governmental function so as to relieve it, at least in the absence of statutory provision to the contrary, from liability for injuries to person or property resulting from the malfeasance or nonfeasance of the departmental officers or employees. (Roumbos v. City of Chicago, 332 Ill. 70; Wilcox v.City of Chicago, 107 id. 334.) A distinction obtains in this class of cases involving tort liability of a municipality between "governmental" or "public" functions, on the one hand, and "private" or "proprietary," on the other. The obvious reason for adherence to the distinction, in tort cases, between acts done in a governmental as distinguished from a proprietary capacity, or a public, in contradistinction to a private or corporate capacity, is the public danger of imposing upon a municipality liability which might prove so onerous as to destroy the municipality itself. In Wilcox v. City of Chicago, supra, the court discussed alternative theories to support its conclusion that the city of Chicago was not liable for the negligence of its firemen in putting out fires, one, that in furnishing fire protection the municipality acted in *Page 571 its governmental capacity, and, second, that it was contrary to public policy to make municipalities liable in actions of this character since so to do would, in substance, cause them to act as insurers against fire hazards.
Even if it be conceded that the operation and maintenance of a city fire department is a governmental and not a private or proprietary function, it does not follow that the function is a State, as opposed to a municipal, governmental function. The classification of municipal activities or functions as proprietary or private, on the one hand, and governmental on the other, is of little importance where the issue is whether the debt created against a city is an indebtedness for a State governmental purpose or for a municipal or city governmental purpose. The constitutional inhibition of section 10 of article 9 is directed against taxation imposed by the State, or persons other than corporate authorities, for corporate purposes, and does not purport to refer to private or proprietary purposes as distinguished from governmental purposes. Taxes, whether imposed by the legislature or local taxing authorities, must be for a public or governmental purpose (Robbins v. Kadyk, 312 Ill. 290) and, when collected, devoted to the cost of administering governmental functions. The test in determining whether a purpose is a corporate purpose within the purview of section 10, hence, cannot be whether it is governmental or private, since the constitutional limitation applies solely where the subject matter is one involving taxation, and taxes can be levied only for those corporate purposes which are public or governmental in so far as the State is concerned.
For the reasons stated I am constrained to dissent from the majority opinion. The judgment of the circuit court, in my opinion, should be reversed.
Mr. CHIEF JUSTICE SHAW concurs in this dissenting opinion. *Page 572