THE PEOPLE ex rel. Frederick Olander, County Treasurer, Appellee, vs. THE PEORIA AND PEKIN UNION RAILWAY COMPANY, Appellant.

Opinion filed February 20, 1908.

1. TAXES what constitutes a "contingency," within meaning of Road and Bridge act. The expense necessitated by an order of the Federal government requiring a town to provide protection for the piers of a bridge across a navigable stream and to place lights on the bridge is not an ordinary current expense and is properly treated as a "contingency," within the meaning of section 14 of the Road and Bridge act, to the extent the duty rests upon the town.

2. SAME-whether providing protection for bridge approaches is a contingency depends upon the facts. If the necessity for providing protection for bridge approaches is occasioned by such high water as occurs occasionally every year, or by ordinary wash from rainfall, or other like causes, the protection must be provided from the ordinary funds raised under section 13 of the Road and Bridge act; but if the necessity results from a change in the course of the stream or some other unexpected occurrence a contingency exists, within the meaning of section 14, authorizing an additional tax.

3. SAME additional levy must be limited to amount needed for the contingency. Section 14 of the Road and Bridge act, even since its amendment in 1903, does not authorize the highway commissioners to levy as an additional road tax an amount greater than will be needed to meet the contingency which has necessitated the levy of the tax.

4. SAME-tax to meet contingency must be levied upon all property in the town. The tax which highway commissioners are authorized, under section 14 of the Road and Bridge act, to levy to meet some contingency must be levied upon all the taxable property within the town, notwithstanding there may be within the limits of the town a city having 35,000 or more inhabitants.

5. ROADS AND BRIDGES-town loses jurisdiction of part of bridge subsequently included in village. Where, after the construction of a bridge rightfully built by a town across a river, a village is organized which embraces the approaches and a part of the bridge within its territory, it is the duty of the village, and not the town, to keep that part of the bridge and approaches within the village. in proper repair, and this duty includes compliance with any requirements of the Federal government affecting that portion.

6. SAME-town retains control of portion of bridge not included in village. If a bridge is rightfully constructed by a town, the fact

1

that a portion of the bridge and its approaches is subsequently included within the limits of a newly organized village does not divest the town of its control of the portion of the bridge without the village, and it remains the duty of the town to keep such portion in repair and to levy taxes for such purpose.

APPEAL from the County Court of Peoria county; the Hon. W. I. SLEMMONS, Judge, presiding.

At the June term, 1906, the county collector of Peoria county made application to the county court of that county for judgment and order of sale against the lands of the Peoria and Pekin Union Railway Company, appellant, for alleged delinquent road and bridge taxes for the year 1905, levied for the township of Peoria, in that county. The cause was continued from time to time until the June term, 1907, when the objections filed to the application, upon a hearing, were overruled and judgment was entered against the lands of appellant for the sum of $1127.98, together with interest, penalty and costs, and from that judgment appellant has prosecuted this appeal.

The town of Peoria, in which the city of Peoria is located, manages its roads and bridges under the cash system. At the semi-annual meeting of the highway commissioners of the town of Peoria in September, 1905, they determined to levy a road and bridge tax of sixty cents on each $100, and on the same day they made a certificate to the board of town auditors and assessor, stating that in their opinion, in view of the necessity of providing for the protection of the piers of the "upper free bridge" extending across the Illinois river, and for placing lights thereon in accordance with the requirements of the United States government, and providing for the protection of the approaches to the said bridge, a contingency had arisen requiring a levy of more than sixty cents on each $100 valuation, and requesting written consent to an additional levy of forty cents on each $100. A majority of the board so constituted con

sented, in writing, to the additional levy, and thereafter, in pursuance of a levy made by said commissioners, a tax of one hundred cents on each $100 valuation was extended by the county clerk against the property of appellant, a part of which, amounting to sixty cents on each $100, was paid. The additional tax levied appellant refused to pay, and that is the tax here involved.

Upon the hearing it was stipulated that the bridge mentioned in the said certificate of the commissioners of highways to the board of town auditors and assessor, and the piers thereof mentioned, and the approaches thereto, and the place at which the government lights were to be placed, were not within the city of Peoria but were all more than one mile distant from the limits of said city; that said bridge extends across the Illinois river from its bank in Peoria township, in Peoria county, to its bank in Fon du Lac township, in Tazewell county, and that the bridge and the approaches thereto were built, under lawful authority, by Peoria township upon the refusal of the highway commissioners of Fon du Lac township to assist in the building of said bridge; that the approaches to said bridge are in the said towns of Peoria and Fon du Lac and in the town of Richwoods, in Peoria county, and that the part of the said bridge that is within Peoria township and the part of the approach that is within Peoria township and Richwoods township are also within the limits of the village of Averyville, a village organized since the construction of said bridge but more than a year before the levy of said tax.

It was further stipulated that on December 8, 1887, the highway commissioners of Peoria township purchased the land on which the bridge and its approaches are located and that said land is now used as a public highway, and has never been transferred in any way to the village of Averyville nor to any person or corporation, and that it has been kept in repair as a public highway by the highway commissioners of the town of Peoria; that the town of Peoria,

prior to the levy in question, on March 15, 1904, and again on August 9, 1905, was ordered by the war department of the United States government to place protection for the piers of said bridge in the river and to place covered lights on the bridge, according to the plans and specifications furnished by that government, and that the estimate received by said commissioners of the cost of constructing the necessary work to protect the piers was $6155.25; that the tax raised by the highway commissioners at the rate of sixty cents on the $100 valuation of the real, personal and railroad property within the town of Peoria outside of the limits of the city of Peoria for the year 1905 was $1599.42, and that all of the property of appellant located in Peoria township is within the city of Peoria.

It is contended by appellant that the additional road and bridge tax levied for the year 1905 against its said property is illegal and void for reasons which will sufficiently appear from the following opinion.

STEVENS & HORTON, and JOHN M. ELLIOTT, for appellant:

The contingency authorizing an additional levy must be one over which the highway commissioners have jurisdiction, and the money raised by a levy in view of such contingency can be used for no other purpose. Hurd's Stat. 1905, chap. 121, sec. 14; Railway Co. v. People, 144 Ill. 458; People v. Railway Co. 213 id. 503; Railway Co. v. People, 225 id. 519; Railroad Co. v. People, 226 id. 557.

The additional levy of forty cents against the property of appellant is void, because no part of the same can be applied to the contingency certified to by the highway commissioners and must be paid into the city treasury for city purposes. Hurd's Stat. 1905, chap. 121, sec. 16.

The bridge, the piers thereof and approaches thereto, and the place at which the government lights were required to be placed, being located within the territorial limits of

the village of Averyville are under its exclusive control, and the highway commissioners of the town of Peoria had no legal authority to levy a tax for the purpose of repairing or replacing the same. Hurd's Stat. 1905, chap. 24, par. 62, clauses 1, 2, 3, 7, 28; Ottawa v. Walker, 21 Ill. 605; Commissioners v. Baumgarten, 41 id. 254; People v. Supervisors, 111 id. 527; People v. Railway Co. 118 id. 520; County of Cook v. Railroad Co. 119 id. 218; Butz v. Kerr, 123 id. 659; Marseilles v. Howland, 124 id. 547; Snell v. Chicago, 133 id. 413; Railway Co. v. People, 144 id. 458; Shields v. Ross, 158 id. 214; People v. Railroad Co. 172 id. 71; Farson v. Fogg, 205 id. 326.

Section 16 of the Road and Bridge act, as construed by the trial court, is unconstitutional. If it was intended that the commissioners should levy a road and bridge tax upon property within the city, then the provision that the amount so levied shall be used for city purposes renders the law unconstitutional, because (1) it authorized the commissioners to levy a tax for other than the corporate purposes of said town; and (2) because it authorized a tax to be levied for city purposes by other than the corporate authorities of the city. And especially is this true when applied to an additional levy, as here, for a contingency outside of the city. Const. 1870, art. 9, secs. 9, 10; Haward v. Drainage Co. 51 Ill. 130; Cornell v. People, 107 id. 372; Wetherell v. Devine, 116 id. 631; Butz v. Kerr, 123 id. 659; Snell v. Chicago, 133 id. 440; Morgan v. Schusselle, 228 id. 106; Wightman v. Clark, 103 U. S. 256; O'Brien v. Wheelock, 184 id. 450.

W. H. STEAD, Attorney General, and ROBERT SCHOLES, State's Attorney, (CLYDE E. STONE, of counsel,) for appellee:

A town may own property outside its limits. Cochran v. Park Ridge, 138 Ill. 295; Cullen v. Jacksonville, 147 id. 113; Shreve v. Cicero, 129 id. 226; Hurd's Stat. chap. 139, secs. 39, 40.