APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 14, 1972.
The appeal here by the plaintiff, the State's Attorney of Cook County, followed the dismissal by the circuit court of Cook County of a quo warrantor action which had been brought by the State's Attorney in challenge to the constitutionality of the Urban Transportation District Act, (Ill. Rev. Stat. 1969, ch. 111-2/3, pars. 501 through 518) and the creation under the Act of the Chicago Urban Transportation District, which we shall refer to as the District. The defendants in the action were the members of the Board of Trustees of the District: Emil Caliendo, Page W.T. Stodder, Alan S. Boyd, John H. Johnson and Arthur M. Wirtz. The circuit court, finding the statute constitutional and the creation of the District valid, sustained the defendants' motion to dismiss.
The Urban Transportation District Act became effective on July 31, 1969. Section 2 (par. 502), which declares the public purposes underlying the Act, observes that there are many areas throughout the State with municipalities which contain outmoded transportation facilities; that the inadequacy of these transportation facilities impairs the vitality and welfare of the areas and municipalities in which they are located; that property values within these areas are consequently depressed; that economic, cultural and educational development is thwarted, and "that the unique and peculiar transportation needs and requirements of such areas, the derivation of maximum benefits by such areas from any improvements therein are found and determined to warrant the establishment of a separate agency of government with powers and duties relative to the development, improvement and other implementation of urban transportation requirements * * *."
The Act provides that any municipality may establish a district within the municipality, if it is found that the "welfare and vitality of such area is * * * jeopardized by the absence * * * or other inadequacy of mass transportation facilities * * * and that it is in the best interest of the area and the public that an Urban Transportation District be organized to exercise the powers and authorities prescribed by this Act, * * *." (Par. 504.) A district "shall be a municipal corporation and shall constitute a body both corporate and politic separate and apart from any other municipal corporation or any other public or governmental agency." (Par. 511.) Before a district can operate, it is necessary that a majority of the voters within its proposed boundaries has voted in favor of its creation. Par. 505.
A district is to be governed by a Board of Trustees, consisting of five members. Two members are to be appointed by the Governor with the advice and consent of the Senate, and three by the mayor of the municipality with the consent of the municipality's governing body. Among its other powers, a district is authorized to issue bonds to obtain the funds necessary to finance proposed improvements. The principal amount of these bonds, together with the other outstanding indebtedness of the district, shall never exceed five percent of the assessed valuation of all taxable property within the district. Too, at the time any bonds are issued, the district must levy "a general tax on all real and personal property situated in the district in an amount sufficient to pay the interest on such indebtedness as it falls due, and also to pay and discharge the principal thereof within twenty (20) years from the time of contracting said indebtedness."
Pursuant to the Act the city council of the city of Chicago on April 29, 1970, adopted a resolution designating an area within the city as an urban transportation district. In accordance with section 5 (par. 505) of the Act a petition was then filed with the circuit court of Cook County, requesting the court to order a special election at which the voters residing within the territory described in the resolution of the city council would vote on a proposition to create an urban transportation district from that area. An election was held on June 30, 1970, and the voters of the proposed district approved its establishment by a vote of 11,454 to 6,730.
The Board of Trustees has been appointed, and has adopted a plan to construct new rapid transit routes and systems at an estimated cost of $750,000,000. The Board hopes to obtain two thirds of the estimated cost from the Federal government, and has applied to the United States Department of Transportation for a $500,000,000 grant under the Urban Mass. Transportation Act of 1964. (Public Law 91-453, 91st Congress, S. 3154, October 15, 1970, Abst. 25.) The District intends to obtain the balance of the funds through the issuance of bonds pursuant to section 13 (par. 513) of the Act. (Ill. Rev. Stat. 1969, ch. 111-2/3, par. 513.) The funds to satisfy these bonds will come from general taxes to be levied on the real and personal property situated in the district. This levy will be in an amount sufficient to pay the interest and retire the principal within 20 years from the issuance of the bonds. No bonds have as yet been issued, nor have any taxes been levied. The District has, however, been advanced funds from other public agencies, including the city of Chicago, to make preliminary engineering studies and plans. In its application to the United States Department of Transportation, the District stated that it will enter into a lease under section 11 (par. 511) of the Act with the Chicago Transit Authority, the terms of which will obligate the Authority to operate and maintain the new facilities as an integral part of its metropolitan transportation system.
The plaintiff's contentions are that the United States constitution, the 1870 constitution of Illinois and the 1970 constitution of Illinois have been violated by the Act and by the creation of the district under the Act.
Preparatory to examining the specific contentions of unconstitutionality we would observe that we must examine the Act and the District's formation in the light of the constitution of Illinois of 1870 as well as the constitution of 1970. The Act was enacted and the District was formed when the 1870 constitution of Illinois was in force. In July 1971, the 1870 constitution was superseded by a new constitution, which had been approved by the voters on December 15, 1970. Though the majority of the Supreme Court of Michigan took a contrary position in a resembling situation (City of Gaylord v. Beckett, 378 Mich. 273, 144 N.W.2d 460) we do not consider that the adoption of a new constitution serves to validate all statutes enacted under the former constitution regardless of their legality or illegality under the earlier constitution. The issuance of bonds, the levy of taxes, and the construction of improvements will all be under the new constitution, but as the legislative origin of the Act and District was under the earlier constitution, we should consider the legality of that legislation under both constitutions.
We believe this conclusion is required by the transition schedule in the 1970 constitution of Illinois (section 9), which schedule governs the passage to the later constitution. It provides in part: "The rights and duties of all public bodies shall remain as if this Constitution had not been adopted with the exception of such changes as are contained in this Constitution. All laws, ordinances, regulations and rules of court not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution." The District is a public body which purportedly had a constitutionally proper existence prior to the adoption of the constitution of 1970. Whether it was legally formed, we judge, depends on whether its formation was not inconsistent with the constitution of 1870. Thus, we are required to examine the legality of the "laws" under which the District was formed. This is consistent with the position this court took in 1875 in People ex rel. Cairo and St. Louis R.R. Co. v. Trustees of Schools, 78 Ill. 136, following the adoption of the constitution of 1870. There the court held a statute under which a school district sought to act unconstitutional under the constitution of 1848, though the attempted action by the district was subsequent to the adoption of the constitution of 1870.
The first challenge to constitutionality we consider is that certain property was included within the District for the sole purpose of deriving revenue for the contemplated transportation improvements. This, it is said, constitutes an arbitrary abuse of legislative discretion contrary to the due process clause of the Federal constitution and the due process clause of the 1870 Illinois constitution (article II, section 2) and presumably contrary to the due process clause of the constitution of 1970. No facts are set forth in support of the contention, but the plaintiff offers Myles Salt Co. v. Board of Commissioners of Iberia and St. Mary Drainage Dist. (1916), 239 U.S. 478, 60 L.Ed. 392, 36 S.Ct. 204, in argument. In Myles two parishes, pursuant to a Louisiana statute, established a drainage district which included lands owned by Myles. The company refused to pay the tax involved and sued to restrain the attempted sale of its land, alleging that inclusion of its lands in the drainage district amounted to an arbitrary exercise of State legislative power.
The Supreme Court, considering the matter on appeal, said that while State legislatures have great latitude in settling the boundaries of special districts, the legislative discretion cannot consistently with the fourteenth amendment be exercised in an arbitrary fashion. The court observed in holding for Myles that its land had a maximum elevation of 175 feet, that the land for whose benefit the drainage district was organized had a maximum elevation of 15 feet and that it was impossible for any benefit to accrue to the Myles land from these drainage improvements. The court remarked: "It is to be remembered that a drainage district has the special purpose of the improvement of particular property, and when it is so formed to include property which is not and cannot be benefited directly or indirectly, including it only that it may pay for the benefit to other property, there is an abuse of power and an act of confiscation." 239 U.S. 478, 485, 60 L.Ed. 392, 396.
Thus, Myles declared that a State may not include property within a drainage district for the purpose of obtaining revenue for the special and sole benefit of other property, but that is not, as the defendants point out, what is concerned here. The District, they say, was not organized for "the improvement of particular property," but for the general public improvement of the District and its environs. Citing St. Louis and Southwestern Railway Co. v. Nattin (1928), 277 U.S. 157, and Memphis and Charleston Railway Co. v. Pace (1931), 282 U.S. 241, 75 L.Ed. 315, 51 S.Ct. 108, the defendants contend, and correctly, we consider, that general public improvements, to be paid for by general ad valorem property taxes, do not impose upon the taxing authority any burden of showing special benefit. In Nattin the court said: "As the assailed tax was general and ad valorem, its legality does not depend upon the receipt of any special benefit by the taxpayer." (277 U.S. 157, 159.) And in Memphis and Charleston Railway Co. v. Pact (1931), 282 U.S. 241, 246, 75 ...