R. S. 1894, sections 3808-3809. Acts 1891, p. 137, sections 37-38. Therefore, if the city school corporation in this case is to be made liable to contribute, that liability must be created by the decree of the court, as was attempted to be done in this case. The creation of such liability being the exercise of a legislative function or power which the constitution forbids the courts to exercise, the superior court erred in attempting to do so. Section 1, article 3, Const., R. S. 1894, section 96. It follows from what we have said that the special term erred in overruling the demurrer to the several paragraphs of the cross-complaint, and consequently the general term erred in affirming that part of the judgment resting on the cross-complaint, namely, the judgment against the appellant for $4,821.48.

That part of the judgment is reversed, and the judgment in favor of the appellant, the city school corporation, for the conveyance to it of the school-houses and lots is affirmed, freed from the condition to pay said sum.

The cause is remanded, with instructions to sustain the demurrer to the several paragraphs of the so-called answer, but which is a crosscomplaint or counterclaim.

creaffing
MICO

Terr. must be contigious

Rule

PEOPLE EX REL. SCHEUBER v. NIBBE.

1894. 150 Ill. 269.

14

BAILEY, J. This was a proceeding by quo warranto, brought to test the validity of the organization of Drainage District No. one, in the township of Niles, Cook county, claimed to have been organized under the provisions of the Farm Drainage Act. It seems to be conceded that, in the organization of the district, all the statutory requirements were complied with, the only objection to its validity being, that the district includes a portion of the territory of the village of Niles Center, a municipal corporation organized under the general law in relation to the incorporation of cities and villages.

It appears that the district embraces a long, narrow and somewhat irregularly shaped territory, and that at about the middle of the district, a portion of the territory of the village is included, extending entirely across the district. It will thus be seen that, if the portion of the village included in the district were omitted therefrom, the district would be divided into two separate portions, having no connection with each other, and it may perhaps be admitted that if the village territory was improperly and illegally included, the organization of the district must be held to be invalid.

But we are unable to see upon what ground it can be held that the inclusion in a drainage district organized under the Farm Drainage Law of a portion of the territory of a village already organized under the general law in relation to cities and villages is improper or un

lawful. It cannot be doubted that the Legislature has the power to authorize the organization of municipal corporations for one purpose, embracing territory situated wholly or partly within the boundaries of another municipal corporation already organized for another purpose. This question was fully considered in Wilson v. Board of Trustees, 133 Ill. 443. That case involved the question of the constitutionality of the act entitled, "An Act to create sanitary districts, and to remove obstructions in the Des Plaines and Illinois rivers," approved May 29, 1889, the first section of which provided that, "whenever any area of contiguous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district." One of the questions raised was, whether it was within the power of the General Assembly, under the Constitution, to authorize the formation of sanitary districts, disregarding the existence and boundaries of preexisting municipal corporations, and invest the corporate authorities with the power of taxation for sanitary purposes. In considering that question, we held, that while the General Assembly may vest in cities, towns and villages, the power to construct sewers, drains, etc., for sanitary purposes, it may also create a corporation within the county, and invest it with like power, and so, may create a corporation including both city and county, and invest it with power to secure the public health by means of sewers, channels and drains; that there are no constitutional restrictions as to the boundary lines of public or municipal corporations within which new corporations may be formed, except as to counties, and that it is wholly unnecessary that the corporate authorities of the new corporation should be also the corporate authorities of some specific pre-existing corporation; that it therefore violates no principal of constitutional law to create a district, and vest it with powers of taxation for sanitary purposes, co-extensive with the territory to be controlled, and that the propriety of the creation of such municipal corporation belongs alone to the General Assembly and not to the courts.

Precisely the same doctrine must be held to apply to the statute under which the drainage district now before us was organized. That was an act to provide for drainage for agricultural and sanitary purposes," etc., and, upon the same principles laid down in the case above cited, the General Assembly had power, under the constitution, to provide for the organization of drainage districts, embracing such territory as in the exercise of its legislative discretion it thought proper, wholly irrespective of whether the territory to be thus organized into a drainage district, or any part of it, was already embraced within the boundaries of a pre-existing municipal corporation.

We are also of the opinion that the provisions of the Farm Drainage Act cannot be so interpreted as to exclude from a drainage district to

be organized under them, the territory already embraced within the limits of an incorporated village. Section eleven of the act and subsequent sections which provide for the formation of districts for combined drainage out of territory lying within a single town, merely provides that the territory to be embraced within the proposed district shall lie within one town. 3 Starr & Cur. Stat. 443, et seq. The provisions of these sections are sufficiently broad to embrace any and all contiguous territory within a town which is so circumstanced as to require a combined system of drainage for agricultural or sanitary purposes wholly irrespective of whether any portion of it is already included within the boundaries of a pre-existing municipal corporation or not. And we know of no other provision of the statute, and are referred to none, by which any further limitation in this respect is imposed.

By the judgment of the Circuit Court, the petition for a writ of quo warranto was dismissed, and we are of the opinion that, upon the facts appearing in the record that judgment was proper, and it will therefore be affirmed.

MOODY J.1 The plaintiffs in error seek a reversal of the judgment of the Supreme Court of Pennsylvania, which affirmed a decree of a lower court, directing the consolidation of the cities of Pittsburgh and Allegheny. This decree was entered by authority of an act of the General Assembly of that State, after proceedings taken in conformity with its requirements. The act authorized the consolidation of two cities, situated with reference to each other as Pittsburgh and Allegheny are, if upon an election the majority of the votes cast in the territory comprised within the limits of both cities favor the consolidation, even though, as happened in this instance, a majority of the votes cast in one of the cities oppose it. The procedure prescribed by the act is that after a petition filed by one of the cities in the Court of Quarter Sessions, and a hearing upon that petition, that court, if the petition and proceedings are found to be regular and in conformity with the act, shall order an election. If the election shows a majority of the votes cast to be in favor of the consolidation, the court "shall enter a decree annexing and consolidating the lesser city . . . with the greater city." The act provides, in considerable detail, for the effect of the consolidation upon the debts, obligations, claims and property of the constituent cities; grants rights of citizenship to the citizens of those cities in the consolidated city; enacts that "except 1 Statement and arguments omitted. - ED.

as herein otherwise provided, all the property . . . and rights and privileges... vested in or belonging to either of said cities . . prior to or at the time of the annexation, shall be vested in and owned by the consolidated or united city," and establishes the form of government of the new city. This procedure was followed by the filing of a petition by the City of Pittsburgh; by an election in which the majority of all the votes cast were in the affirmative, although the majority of all the votes cast by the voters of Allegheny were in the negative, and by a decree of the court uniting the two cities.

Prior to the hearing upon the petition the plaintiffs in error, who were citizens, voters, owners of property and tax-payers in Allegheny, filed twenty-two exceptions to the petition. These exceptions were disposed of adversely to the exceptants by the Court of Quarter Sessions, and the action of that court was successively affirmed by the Superior and Supreme courts of the State. The case is here upon writ of error, and the assignment of errors alleges that eight errors were committed by the Supreme Court of the State. This assignment of errors is founded upon the dispositions by the state courts of the questions duly raised by the filing of the exceptions under the provisions of the Act of the Assembly.

The defendants in error moved to dismiss the case because no Federal question was raised in the court below or by the assignments of error, or, if any Federal question was raised, because it was frivolous. This motion must be overruled. The plaintiffs in error claimed that the Act of Assembly was in violation of the Constitution of the United States, and specially set up and claimed in the court below rights under several sections of that Constitution, and all their claims were denied by that court. These rights were claimed in the clearest possible words, and the sections of the Constitution relied upon were specifically named. The questions raised by the denial of these claims are not so unsubstantial and devoid of all color of merit that we are warranted in dismissing the case without consideration of their merits. Some part of the assignments of error and of the arguments in support of them may be quickly disposed of by the application of well-settled principles. We have nothing to do with the policy, wisdom, justice or fairness of the act under consideration; those questions are for the consideration of those to whom the State has entrusted its legislative power, and their determination of them is not subject to review or criticism by this court. We have nothing to do with the interpretation of the constitution of the State and the conformity of the enactment of the Assembly to that constitution; those questions are for the consideration of the courts of the State, and their decision of them is final. The Fifth Amendment to the Constitution of the United States is not restrictive of state, but only of national, action. After thus eliminating all questions with which we have no lawful concern, there remain two questions which are within our jurisdiction. There were two claims of rights under the Constitution of the United

States which were clearly made in the court below and as clearly denied. They appear in the second and fourth assignments of error. Briefly stated, the assertion in the second assignment of error is that the Act of Assembly impairs the obligation of a contract existing between the City of Allegheny and the plaintiffs in error, that the latter are to be taxed only for the governmental purposes of that city, and that the legislative attempt to subject them to the taxes of the enlarged city violates Article I, section 9, paragraph 10, of the Constitution of the United States. This assignment does not rest upon the theory that the charter of the city is a contract with the State, a proposition frequently denied by this and other courts. It rests upon the novel proposition that there is a contract between the citizens and tax-payers of a municipal corporation and the corporation itself, that the citizens and tax-payers shall be taxed only for the uses of that corporation, and shall not be taxed for the uses of any like corporation with which it may be consolidated. It is not said that the City of Allegheny expressly made any such extraordinary contract, but only that the contract arises out of the relation of the parties to each other. It is difficult to deal with a proposition of this kind except by saying that it is not true. No authority or reason in support of it has been offered to us, and it is utterly inconsistent with the nature of municipal corporations, the purposes for which they are created, and the relation they bear to those who dwell and own property within their limits. This assignment of error is overruled.

Briefly stated, the assertion in the fourth assignment of error is that the Act of Assembly deprives the plaintiffs in error of their property without due process of law, by subjecting it to the burden of the additional taxation which would result from the consolidation. The manner in which the right of due process of law has been violated, as set forth in the first assignment of error and insisted upon in argument, is that the method of voting on the consolidation prescribed in the act has permitted the voters of the larger city to overpower the voters of the smaller city, and compel the union without their consent and against their protest. The precise question thus presented has not been determined by this court. It is important, and, as we have said, not so devoid of merit as to be denied consideration, although its solution by principles long settled and constantly acted upon is not difficult. This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizens and creditors. Maryland v. Balt. & Ohio Railroad, 3 How. 534, 550; East Hartford v. Hartford Bridge Company, 10 How. 511, 533, 534, 536; United States v. Railroad Company, 17 Wall. 322, 329; Laramie County v. Albany County, 92 U. S. 307, 308, 310-312; Commissioners v. Lucas, 93 U. S. 108, 114; New Orleans v. Clark, 95 U. S. 644, 654; Mount Pleasant v. Beckwith, 100 U. S. 514, 524, 525, 531, 532; Meriwether v. Garrett, 102 U. S. 472, 511; Kelly v. Pittsburgh, 104 U. S. 78, 80; Forsyth v. Hammond,