APPEAL from the Circuit Court of Knox County; the Hon. WILLIAM
M. BARDENS, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 17, 1950.
May 28, 1948, the plaintiff, the State's Attorney of Knox County, in the name of the People of the State, upon the relation of Ralph S. Armstrong, a qualified taxpayer of the town of Floyd, in Warren County, filed in the circuit court of Knox County a complaint or information in the nature of quo warrantor against the defendants, William Huggins, Stanley Wolford and J.L. Wilkie, trustees of the Abingdon Fire Protection District, located partly in Knox County and partly in Warren County. The relief sought was a judgment ousting and expelling defendants from the franchises and offices of trustees. By their first amended answer, defendants described the procedural steps incident to the organization of the Abingdon Fire Protection District, under "An Act to create Fire Protection Districts," approved July 8, 1927, as amended, (Ill. Rev. Stat. 1947, chap. 127 1/2, par. 21,) and their appointment, on May 20, 1947, by the county judge of Knox County as members of the board of trustees for the government and control of the affairs and business of the district. Answering further, defendants averred that their actions as corporate officials constituted a user of the corporate franchise.
From the pleadings it appears that, on March 14, 1947, a petition signed by the requisite number of legal voters residing within the limits of the proposed district was filed in the office of the county clerk of Knox County. The petition, addressed to the county judge of Knox County, sought submission at a referendum of the question whether the territory described should be organized as a fire protection district under the act of 1927. On April 17, 1947, the county judge entered an order definitely describing the territory to be embraced in the proposed district and fixing its boundaries by eliminating part of the territory described in the petition. The order specifically found that the territory is contiguous and does not contain any territory previously or then included in any other fire protection district, and that Knox County contains the largest portion of the proposed district, both as described in the petition and as fixed by the court. The order directed that the question of the organization and establishment of the proposed district, as determined by the county judge, be submitted to the legal voters of the proposed district at a special election on May 17, 1947. This was done, and, on May 20, 1947, an order was entered declaring the territory described by the county judge in his order of April 17, 1947, an organized fire protection district, and appointing defendants as its trustees. They qualified on July 3, 1947, and assumed the duties of their offices.
Plaintiff made a motion to strike the first amended answer, making the charges, among others, that the Fire Protection District Act, as amended, violates article III and section I of article IV of our constitution, and contravenes the first section of the fourteenth amendment to the Federal constitution and the complementary provisions of section 2 of article II of the State constitution.
July 16, 1949, an order was entered striking defendants' first amended answer upon the ground that the Fire Protection District Act, as amended, purports to confer legislative functions on a judicial officer, thereby attempting to authorize the judicial department to exercise the powers properly belonging to the legislative department, in violation of article III of our constitution, and, also, constitutes an unwarranted delegation of legislative power in contravention of section I of article IV. Defendants, electing to abide by their pleading, were adjudged guilty of usurpation of the franchises and offices of trustees of the Abingdon Fire Protection District, and ousted and prohibited them from exercising the functions, privileges and prerogatives of the franchises and offices of trustees of the district.
On August 15, 1949, defendants made a motion to vacate the judgment of ouster of July 16, 1949, alleging that, subsequent to its entry, namely, on August 10, 1949, the Governor approved two acts of the General Assembly validating, ratifying, confirming, approving and declaring legal the creation of fire protection districts organized under the provisions of the Fire Protection District Act of 1927, as amended; declaring them bodies corporate and politic, and legalizing their acts and proceedings. Their motion set out verbatim the two statutes, hereafter referred to as House Bill No. 1005 (Laws of 1949, p. 1497,) and House Bill No. 1006, (Laws of 1949, p. 1496,) and, in addition, alleged approval on July 27, 1949, of a third act, House Bill No. 1007, (Laws of 1949, p. 1484,) amending the Fire Protection District Act of 1927, and that, irrespective of whether the act of 1927 was constitutional prior to the amendments made by House Bill No. 1007, the act, as amended on July 27, 1949, is a valid and constitutional act for the operation of fire protection districts in the State.
Plaintiff filed a motion to strike defendants' motion to vacate the judgment of ouster, alleging that the two curative acts approved August 10, 1949, were unconstitutional in the various respects enumerated and that the act approved July 27, 1949, is prospective in its application and without force and effect to validate the acts and proceedings by which an attempt was made to create the Abingdon Fire Protection District. Defendants were permitted to file an amendment and supplement to their first amended answer setting forth the enactment and approval of House bills Nos. 1005, 1006, and 1007. Plaintiff made a motion to strike defendants' supplement and amendment upon the same grounds urged in its motion to strike defendants' motion to vacate the judgment of ouster entered July 16, 1949. On November 16, 1949, the court found that the motion to strike the supplement and amendment to the first amended answer raised the question of, and placed in issue, the constitutional validity of the acts approved August 10, 1949, and that a determination of the validity of these statutes was necessary to a decision of the case, and that the statutes are valid and constitutional. Thereupon, a judgment was rendered adjudging that the Abingdon Fire Protection District is and has been continuously since May 17, 1947, a duly organized and validly existing municipal corporation under the laws of the State, and that defendants are and have been since July 3, 1947, the duly appointed, qualified and validly acting trustees of the district. From this judgment, plaintiff prosecutes this appeal, a franchise being involved, within the contemplation of section 75 of the Civil Practice Act. Ill. Rev. Stat. 1949, chap. 110, par. 199.
Section I of the challenged statute, as it obtained in 1947, authorized the creation of fire protection districts for the prevention and control of fire therein. Districts could be incorporated in the detailed manner described. A petition signed by fifty or more of the legal voters resident within the limits of the proposed district, or a majority thereof if less than one hundred, was required to be presented to the county judge of the county which contained all or the largest portion of the proposed district, requesting submission to the legal voters of the proposed district of the question whether the proposed territory should be organized as a fire protection district. The petition, it was provided, should contain "a definite description of the boundaries of the territory to be embraced in the proposed district," and its name. With respect to the territory to be included in a proposed fire protection district, section I, to the extent relevant, declared that the territory incorporated in any district should be contiguous and might contain any territory not previously included in any fire protection district. Upon the filing of a petition in the office of the county clerk of the county in which the petition was made, the statute ordained, "It shall be the duty of the county judge to consider the boundaries of any such proposed fire protection district whether the same shall be those stated in the petition or otherwise." The word "boundaries" refers to the requirements for describing boundaries in the preceding paragraph of section I. Detailed requirements were prescribed with respect to notice by the county judge of the time and place of a hearing upon the subject of the petition. Section I provided, further, that, at the meeting, the county judge should preside; that all persons in the proposed fire protection district should have an opportunity to be heard touching, and to make suggestions regarding, the location and boundary of the proposed district, and that the judge, after hearing statements, evidence and suggestions, "shall fix and determine the limits and boundaries of such proposed district, and for that purpose and to that extent, may alter and amend such petition." The purpose of having a hearing on the location and boundary of the district was for the stated purpose of the statute, namely, "the prevention and control of fire" in fire protection districts. Section I continued, "After such determination by said judge the same shall be incorporated in an order which shall be spread at length upon the records of the County Court. Upon the entering of such order the county judge shall submit to the legal voters of the proposed fire protection district the question of organization and establishment of the proposed fire protection district as determined by said judge," at an election to be held within a specified period of time. The form of ballot to be used at the election was set forth, and provisions were made for establishing and fixing boundaries of voting precincts.
Plaintiff earnestly contends that the statute violates article III and section I of article IV of the State constitution upon the ground that its provisions constitute an unwarranted and void delegation of legislative power to county judges. By article III the powers of government of this State are divided into three separate and distinct departments. Each department is to perform the duties assigned to it and no department may exercise the powers properly belonging to either of the other two. (Saxby v. Sonnemann, 318 Ill. 600.) A statute which vests a discretion not only as to the administration of the enactment but, also, the determination of what the law is, or whether to apply it to one and not to another in like circumstances, constitutes an unwarranted delegation of legislative authority. (Owens v. Green, 400 Ill. 380.) Conversely, the legislature may delegate to others the power to do those things which it might properly but cannot understandingly or advantageously do itself, and it may confer authority or discretion as to the execution of the law, to be exercised under and in pursuance of the law. People ex rel. Barrett v. Logan County Building and Loan Ass'n, 369 Ill. 518; Parks v. Libby-Owens-Ford Glass Co. 360 Ill. 130; Welton v. Hamilton, 344 Ill. 82.
Recourse to the provisions of the Fire Protection District Act discloses that the challenged act is patterned on the Sanitary District Act of 1889. The procedure and verbiage are, for the most part, duplicated not only in the act of 1889 but also in the Sanitary District Act of 1907, (Laws of 1907, p. 289,) the Sanitary District and Sewage Disposal Act of 1917, (Laws of 1917, p. 396,) and the River Conservancy Act of 1925. (Laws of 1925, p. 346.) Objections to the constitutional validity of these statutes have been raised from time to time, commencing with an attack upon the Sanitary District Act of 1889 in People ex rel. Longenecker v. Nelson, 133 Ill. 565. The statute, "An act to create sanitary districts, and to remove obstructions in the Des Plaines and Illinois rivers," provided for the creation of sanitary districts comprising certain areas of contiguous territory, and empowering the districts to construct and maintain a common outlet for the drainage and sewage in their respective territories. Section I of the Sanitary District Act provided that, after the filing in the office of the county clerk of a proper petition for the organization of a sanitary district, "it shall be the duty of the county judge to call to his assistance two judges of the Circuit Court, and such judges shall constitute a board of commissioners which shall have power and authority to consider the boundaries of any such proposed district, whether the same shall be described in the petition or otherwise." The corresponding language of the Fire Protection District Act is that, at a hearing upon the subject of a petition to cause the question of the organization of a fire protection district to be submitted to the electorate, "The county judge, * * * after hearing statements, evidence and suggestions, shall fix and determine the limits and boundaries of such proposed district, and for that purpose and to that extent, may alter and amend such petition." The Sanitary District Act provided, further, for the meeting of the commissioners constituted as described, for publication of the time and place of the meeting, and that the county judge should preside at such meeting. Strikingly similar to the provisions of the Fire Protection District Act are the additional provisions of section I of the Sanitary District Act that all persons in the sanitary district shall have an opportunity to be heard touching the location and boundaries of the proposed district, and to make suggestions regarding them, and that the commissioners, after hearing statements, evidence and suggestions, shall fix and determine the limits and boundaries of the proposed district, and, for this purpose and to this extent, may alter and amend the petition. The statute also provided that, after the determination by the commissioners, the county judge should submit to the legal voters of the proposed district the question of its organization and establishment, as determined by the commissioners, at an election to be held on the day specified.
One objection leveled against the Sanitary District Act was that, in providing the machinery for the organization of sanitary districts, it imposed upon the judge of the county court and two of the judges of the circuit court duties incompatible with their functions and duties as judges of those courts. The point urged was that the statutory provisions previously described imposed upon the county judge and the two circuit judges performance of executive or ministerial duties, and that, in consequence, the statute transcended article III of our constitution, and, further, that if the duties were judicial in character, the act created a new judicial tribunal unknown to the constitution and, hence, was in conflict with section I of article VI which exhausts all of the judicial power of the State by dividing it among certain courts therein specifically enumerated. Answering the objections, this court said, "But we are not prepared to hold that the duties imposed by said act upon said judges are necessarily incompatible with their duties as judges of the Circuit and County Courts. So far as the act commits to the County Court the political function of selecting the two judges of the Circuit Court who constitute the other two members of the commission, the principle is in no respect different from that involved in a variety of other cases in which statutes imposing analogous duties upon judicial officers have been held to be constitutional. Thus, the statute giving the Circuit Court of Cook county the power to appoint the commissioners for the South Park has been held to be constitutional. [Citations.] So, also, the provisions of the drainage laws giving the County Courts the power to appoint drainage commissioners have been held valid. [Citations.] The same is true of those provisions of the Election Law of 1885, giving the County Court power to appoint election commissioners. [Citation.]
"Nor are the duties imposed upon said commissioners, when selected, necessarily incompatible with their duties as judges. As said by this court in discussing a similar provision of the Constitution of 1818: `It does not mean that the legislative, executive and judicial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was understood by the authors of our government, and those of the general and state governments, is evidenced by the Constitutions of all. In every one, there is a theoretical or practical recognition of this maxim, and at the same time a blending and admixture of different powers.' Field v. The People, 2 Scam. 79. To same effect see, Owners of Lands v. The People, 113 Ill. 296, and People v. Hoffman, 116 Ill. 587.
"We may refer, by way of illustration, to those provisions of our statutes which confer upon judges the power to take the acknowledgment of deeds and to solemnize marriages, powers which, though non-judicial in their nature, have never ...