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IN THE
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October Term, A. D. 1901.
*
THE PEOPLE OF THE STATE OF ILLINOIS
ex rel THE CITY OF EVANSTON
„. .v: :
BOARD OF COOK COUNTY Com¬
petition for
Mandamus.
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MISSIONERS.
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JOSEPH E. PADEN.
(.'OBVOKATION COUNSEl, AND ATTORNEY FOR PsTITJONER.
ALEXANDER CLARK.
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IN THE
Supreme Court of Illinois.
October Term, A. D. 1901.
THE PEOPLE OF THE STATE OF ILLINOIS
ex rel. THE CITY OF EVANSTON
vs.
BOARD OF COOK COUNTY COM¬
MISSIONERS.
Petition for
Mandamus.
STATEMENT OF THE CASE.
For a clear understanding of the case, the petition and
exhibits of the petitioner are herein set out in full:
State of Illinois, 1
County of Cook. ( SS"
In the Supreme Court of Illinois,
Northern District.
The City of Evanston j Petition for
Board of Cook County Commissioners, f Mandamus.
To Edwin IF. Sims, County Attorney of said Board:
Please take notice that a petition, a copy of which is
hereto attached, will be presented in the Supreme Court
2
of the State of Illinois on the first day of the October,
1901, term thereof, on behalf of the city council of the
City of Evanston, filed in such matter, in accordance with
the rules of said Supreme Court.
Joseph E. Paden,
Attorney for and Corporation Counsel
of the City of Evanston.
Service of the foregoing notice accepted by copy
thereof this 19th day of September, A. D. 1901.
Board of Cook County Commissioners.
By E. W. Sims,
County Attorney, and
W. F. Struckman,
Assistant County Attorney.
Attorneys for Board of Cook County Commissioners.
State of Illinois, )
County of Cook, f SS'
In the Supreme Court of Illinois.
Northern District.
To the Honorable Judges of said Court:
Your petitioner, the City of Evanston, through its
corporation counsel, Joseph E. Paden, respectfully
shows unto your Honors that the boundaries of said city
include portions of the townships of Evanston, Niles and
New Trier, shown on the map annexed hereto, marked
" Exhibit A," and made a part of this petition, the por¬
tion of the Township of Evanston being indicated by
white, of Niles by blue, of New Trier by red, of the por¬
tion of the Town of Evanston in the City of Chicago by
yellow and the unincorporated portion by green, on said
3
map; the i*espective portions of said townships included
in said city are as follows:
That the portion of the Township of Evanston outside
of the City of Evanston is about 3,120 acres, of which
portion 820 acres is unincorporated territory, and the
balance, being 2,300 acres, is situated in the City of Chi¬
cago, and the portion of the Township of Niles not in¬
cluded in the City of Evanston contains over 75,000
acres of land, and that portion of the Township of New
Trier so situated contains over 10,000 acres of land and
composes the present school township of New Trier.
That the assessed valuation of the whole of the present
Township of Evanston, as equalized for the year 1890,
was $6,878,744; and of the portion included in the City
of Evanston for the same time was $5,444,463; of the
portion outside of the City of Evanston $1,434,2S1, and
of this portion that part included in the City of Chicago
was $1,340,480, and that portion unincorporated was
$93,801.
That the assessed valuation for the same period of the
portion of Niles included in the City of Evanston was
$30,913, and of the portion of the Town of New Trier
included in said city, $238,235; and that the present as¬
sessed valuation of the portions of territory aforesaid is
substantially the same as for the year 1899.
« Your petitioner further shows that nearly the whole of
the territory included in the City of Evanston has been
subdivided for residence purposes; that the duties of the
township highway commissioners are performed in said
Township of Evanston
Township of Niles, about
Township of New Trier, about
3,930 acres
80 «
300 "
4
city by the city officials, and said highway commissioners
have no jurisdiction over the streets and alleys of said
city, and that the existence of the office of highway com¬
missioners is wholly unnecessary, so far as the territory in¬
cluded in the City of Evanston isconeerned ; that the prin¬
cipal duties of the town clerk are also unnecessary, and that
the office of town clerk, so far as such territory is con¬
cerned, should be consolidated with that of the city clerk,
and that the same condition applies as to the office of
town collector and city treasurer, and that the consolida¬
tion of these offices would be a great saving to the tax¬
payers of the City of Evanston, and would secure a more
compact and businesslike administration of the affairs of
said city, and that it is to the interest of said city that
the same should be consolidated.
Your petitioner further shows that on account of the
urban character of the territory of said city and on ac¬
count of the fact that the township election is held on the
first Tuesday in April, while the city election is held on
the third Tuesday in April, and that the bulk of the
legal voters of said city do business in the City of Chi¬
cago and are not in the City of Evanston at the hour of
the town meeting, the same is very sparsely attended by
the voters of said city, and the imposition of an addi¬
tional election upon the territory of said city is useless
and expensive, and the officers elected at such township
election are usually elected by a very small number of
the legal voters of the City of Evanston.
Your petitioner further shows that the property in¬
cluded in said city in each township is assessed by differ¬
ent assessors; that the Township of Niles is an agri¬
cultural township with very little urban territory in¬
cluded in its limits, and that on this account its property
5
is assessed at a much lower valuation than that of the
Township of Evanston, which is largely an urban town¬
ship, and that the assessed valuation of the portion of
New Trier included in the City of Evanston is much
lower than the portion of the Township of Evanston in¬
cluded in said city, and that on account of these varia¬
tions in assessment a territory of precisely the same
character and value but situated in the different portions
of such townships included in said city bears different
portions of the burden of municipal, school, county and
state taxation, and that on account of the territory of the
City of Evanston being composed of portions of three
townships, the county clerk is compelled to keep separate
accounts and make separate returns in regard to each
portion of said townships, and the county officials are
thereby subjected to great annoyance and expense, and
the whole management of the township affairs is rendered
unbusinesslike and burdensome.
And your petitioner further shows that for the reasons
aforesaid, and the reasons set forth in the petition of the
property owners to the city council of the City of Evans¬
ton, which is hereto attached and marked ''Exhibit B1'
and made a part hereof, it is to the interest of all parties
that the territory embraced in the City of Evanston
should be consolidated into a single township.
Your petitioner further shows that on May 23, 1877,
an act of the legislature was passed and approved entitled
"An Act to authorize county boards under township or¬
ganization to organize certain territory situated therein as a
town;'' that under the provisions of this act any city in any
such county, having a population of not less than 3,000,
might be organized into a separate township whenever
the city council of such city should by resolution request
6
such action by the county board; that after being so or¬
ganized the offices of city and town clerk might be united;
also the offices of treasurer and town collector, and the
election of highway commissioners discontinued, and the
election of all town officers held at the time of the city
election.
Your petitioner further shows that the City of Evans-
ton has an excess of 3,000 population and is situated
in Cook County, which is a county under township or¬
ganization, and is therefore within the terms of such
statute, and that it is greatly to the interest of the tax¬
payers of said city and the taxpayers of the County of
Cook that the territory embraced within such city
should be organized into a separate township, and the
office of highway commissioners abolished in such ter¬
ritory, and the offices of town clerk and city clerk united,
and also those of town collector and city treasurer, and
the township election fixed upon the same date as the city
election, and the affairs of the territory included in such
city thereby rendered more economical, compact and busi¬
nesslike.
Your petitioner further shows that the petition set out
in Exhibit B aforesaid was presented to the city council
of the City of Evanston, and that the matter of said
petition was thereupon referred to the judiciary commit¬
tee of said council, and that on the 19th day of March,
1901, said judiciary committee made the report, a copy
of which is hereto attached and marked " Exhibit C ''
and made a part hereof, and that upon such report the
city council of Evanston on the 19th day of March, 1901,
passed the following resolution:
Resolved, That the county board of Cook County be
and the same is hereby requested to provide that the por-
7
tions of the territory of the Townships of Evanston, Niles
and New Trier included within the boundaries of the City
of Evanston be organized into a township to be named
the Township of Ridgeville; such organization to take
effect on and after the first day of January, 1902, in ac¬
cordance with an act entitled: "An act to authorize
county boards and counties under township organiza¬
tion to organize certain territory situated therein as a
town," approved May 23, 1877, and all amendments
thereto.
And be it further resolved, That the city clerk of the
City of Evanston be instructed to present a certified copy
of this resolution to the president of the county board
after the first Tuesday in April, 1901.
That in pursuance of such resolution, I he city clerk of
the City of Evanston sent to the County Board of Com¬
missioners of Cook County a certified copy thereof, and
the mayor of Evanston appointed a committee of twelve
to go before the said county board and iu*ge favorable
action upon such resolution; that said committee ap¬
peared before the county board and presented to it, with
oral argument, copies of the report of the committee of
the city council of Evanston aforesaid, and also the peti¬
tion of the property owners to said city council aforesaid,
which documents, together with the certified copy of the
resolution of said city council, was referred to the com¬
mittee of public service, and re-referred by such com¬
mittee to its judiciary committee, and that said judiciary
committee applied for an opinion upon said matter from
the county attorney, and that said county attorney ren¬
dered an opinion, a copy of which is hereto attached and
marked Exhibit D and made a part hereof; that thereupon
the said judiciary committee reported back to the com¬
mittee of public service, on the 24th day of June, 1901,
as follows:
8
" Your committee has had under consideration the
■" petition and resolution from the citizens of Evanston
" asking that a new township be formed to include the
" City of Evanston, to be called Ridgeville. In view of
" the opinion from the county attorney on the subject,
" which is hereto attached and made a part of this re-
u port, we would recommend that the prayer of the pe¬
tition be not granted," which report of said judiciary
committee was approved and adopted by said public
service committee and by said Board of Cook County
Commissioners.
Your petitioner further shows that the construction
placed upon said law by the county attorney aforesaid is
incorrect, as it is credibly informed by competent legal
authorities, and that the act aforesaid does apply to
the territory embraced within the City of Evanston, and
that the prayer of the petition and resolution of the City
of Evanston should have been granted by said county
board, and that it is the duty of said county board to
now grant the same, but that said county board unlaw¬
fully and improperly refuses so to do.
Wherefore, your petitioner prays a writ of mandamus
directed to said county board commanding it forthwith to
pass a resolution organizing the territory included in the
City of Evanston into a separate township, to be known
as the Township of Ridgeville, and to do all other acts
necessa.ry for the complete organization of such new
township; and that such further order may be made in
the premises as justice may require.
The City of Evanston, Illinois,
By Joseph E. Paden,
Its Corporation Counsel.
Alex. Clark,
Of Counsel.
9
State of Illinois, )
County of Cook. f 88
Alex. Clark, being lirst duly sworn, on his oath says
that he is a legal voter and taxpayer in the City of
Evanston; that he is familiar with the facts set forth in
the foregoing petition of said city, and that the several
matters and things in said petition contained are true, to
the best of his knowledge, information and belief.
Alex. Clark.
Subscribed and sworn to before me, this 20th day of
September, A. D. 1901.
Morris A. Weinberg,
Notary Public.
10
EXHIBIT A.
PORTION OF TOWN OF EVANSTON IN THE CITY OF EVANSTON.
- New Trier.
Unincorporated territory of Evanston Township.
Portion of Town of Evanston in City of Chicago.
Boundary of proposed Town of Ridgevillc and of present City
11
Exhibit B.
The Honorable Mayor and City Council of the City of
Evanston :
Gentlemen—Your petitioners, taxpayers and legal
voters of said city, respectfully request you to pass a
resolution requesting the county board of Cook County,
Illinois, to provide that the portion of the territory of the
Townships of Evanston, Niles and New Trier embraced
within the territory of the City of Evanston be organized
into a town to be known as the Township of Ridgeville.
And your petitioners further request that in case such
action shall be taken by the county board, that the city
council of the City of Evanston shall exercise the power-
vested in such Town of Ridgeville and shall abolish the
offices of town clerk, town collector, highway commis¬
sioners and overseers of the poor, and that such city
council take whatever other steps may be necessary and
legal for the consolidation, so far as possible, of the
township and city government and the abolition of use¬
less offices and expenses.
Volnet W. Foster.
Mason B. Loomis.
Alex. Clark.
Marshall D. Eweli..
C. Clarence Poole.
W. M. Green.
Felix Barrage.
M. M. Kirkman.
David L. Zook.
Fred A. Vose.
Lewis W. Parker.
Thomas C. Clark.
Charles A rend.
12
Reasons for the Organization of the City of
Evanston into a Township.
1st. The city is now unjustly burdened for the sup¬
port of territory outside of its limits through the agency
of the township organization.
The assessed valuation of 1899 for the Township of
Evanston was $6,878,744; of which sum $5,444,463
was included in the portion of the City of Evanston in
said township; $1,340,480 was included in the portion
of Chicago in said township, and $93,801 was included
in 'the portion of the township of Evanston lying south of
Crain street and unincorporated, being altogether about
700 acres. It will be seen, therefore, that the unincor¬
porated portion of the Township of Evanston represents
less than one-sixtieth (1/60) part of the valuation of the
other portions, and that, therefore, this large incorpor¬
ated territory is burdened with a set of useless offices and
offiee-holders largely for the support of this small unin¬
corporated territory.
As an illustration of the injustice of this burden,
the highway commissioners of the Township of
Evanston are authorized to levy taxes up to 6 mills
on the dollar on the assessed valuation of the whole prop¬
erty in the township. This would make a levy equal to
about $35,000. The portion of this amount to be raised
by the unincorporated territory would be about $600;
the portion to be raised by the City of Evanston would
be about $30,000. Of this $30,000'only one-half would
be returned to the City of Evanston, while the other
$15,000 would be kept by the highway commissioners
for expenditure in the unincorporated territory that
13
raises $G00. The City of Evanston is only allowed to
raise 2 cents on the dollar for all municipal purposes, so
that it will appear that the highway commissioners may
levy a tax for roads and bridges equal to one-fourth of
the tax to be levied for all municipal purposes1 by the
City of Evanston, and one-half of this amount, or $15,-
000, so levied upon the city property, they can use for
improvements in territory outside of the city limits.
This condition of things is so unjust and unbusiness¬
like that it should not be tolerated a moment by a com¬
munity of the intelligence of Evanston, if there is any
way of abolishing it.
2nd. It would consolidate the township and city elec¬
tions. At present, the township election is held on the
first Tuesday in April and the town meeting in the after¬
noon. The result is that the election and town meeting
are scarcely attended by the bulk of the voters of Evans¬
ton, who are in Chicago at that time. Under the new
method this town meeting would be abolished and the
election for any township officers that would not be
eliminated would be held at the same time as the city
election.
3rd. The City of Evanston embraces portions of
three townships. Each of these townships has its set of
highway commissioners who can levy in the same method
upon the portion of the City of Evanston included in its
township. Again, each of these townships has its own /
assessor and collector; it holds its own town meetings and
has its complete equipment of officers, and the portion of
the City of Evanston embraced in the township has to
bear its proportion of the burden.
4th. By each of the townships having an assessor
there are three grades of assessment in the City of Evans-
14
ton. As an illustration of the injustice wrought in this
respect, it will be seen by examining the collector's book,
No. 5, page 30, for the year 1898, of the Township of
Evanston, that lots 1 to 7, in block 1, in E. T. Paul's
Addition, being the property situated on the southeast
corner of McDaniel avenue and Central street, in North
Evanston, are assessed by the Evanston town assessor
at $76 a lot, while lots 1 to 7, in block 2, of the same
subdivision, being the property situated at the southwest
corner of the same st'-eets, as shown by volume 2, page
4, of the collector's book for the Town of Niles, for the
same year, are assessed at $51 a lot, or a difference of
about 50 per cent. And this is only a sample of the di¬
versity between the two township assessments to-day.
The municipal tax is based upon this assessment, and
therefore this property in the Township of Niles is bear¬
ing about 50 per cent, less of the burden than the other
property in the Township of Evanston similarly situated.
By making a township of the City of Evanston all the
property within its limits would be subject to one as¬
sessor and a uniform assessment.
5th. The present system imposes burdens upon the
county clerk and the Evanston officials in the useless
bookkeeping required for the keeping of correct accounts
in this complicated system.
6th. The law furnishes a simple and easy method of
procedure for the escape of the City of Evanston from
this unjust and complicated system and for the consolida¬
tion and simplification of municipal government, and the
law was prepared for exactly these conditions and was
passed in 1877 and has been passed upon by our Supreme
Court and held to be constitutional and valid in Peoples.
llasdwDod, 116 111., 319.
15
Exhibit C.
To the Honorable Mayor and City Council of the City of
Evanston:
Gentlemen—You committee, to whom was referred
the petition of Volney W. Foster and others in regard to
the organization of the City of Evanston into a separate
township, begs leave to report and recommend as fol¬
lows:
We find that the condition of things with reference to
township matters in the territory embodied within the
City of Evanston is fully as aggravated, unbusinesslike
and expensive as set out in the petition. Indeed, we find
that it is more so, because section 14, of chapter 121,
Statutes of Illinois, authorizes the highway commis¬
sioners, with the concurrence of the town board, to levy
in addition to the 60 cents on the $100 mentioned in the
petition, an additional levy of 40 cents on the $100,
making a total levy of $1 on the $100, or one-half as
much as the city council of the City of Evanston has a
right to levy for all municipal purposes. This would
make a levy upon the City of Evanston of over $50,000,
and these highway commissioners have a right to spend
$25,000 of this outside of the limits of the City of
Evanston.
These tremendous powers vested in a board that is
elected at a town meeting at which possibly not more
than fifty or sixty of the whole legal voters of the town¬
ship have participated makes a very serious and unbusi¬
nesslike state of affairs, which should be promptly
remedied.
Your committee is of the opinion that this remedy
16
exists without any additional legislation, under the pro¬
visions of the act of 1877 referred to in the petition, in
conjunction with article 3 of the general township law.
But in order that it may be applied with entire safety and
with the least possible friction, your committee would
recommend that no attempt be made to organize the new
township so as to affect the collection and assessment of
taxes for the coming year.
Your committee finds that if the resolution is not
passed by the county board creating the new town prior
to the township election on the first Tuesday of April,
then the officers elected at that time for the assessment
and collection of taxes will hold their offices thi'ough
their full terms.
Your committee would recommend, therefore, that the
City of Evanston promptly pass a resolution requesting
the county board to organize the poi'tions of the territory
of the Townships of Evanston, Niles and New Trier now
included within the boundaries of the City of Evanston,
into a new township to be known as the Township of
Ridgeville; such action to take effect and such new town¬
ship to come into existence on the first day of January,
1902.
By this action, your committee understands that the
collector and assessor elected for the coming year would
have control over that portion of the territory in their
respective townships included in the City of Evanston up
to the first Tuesday in April, 1902; and that the offices
of supervisor, town clerk and highway commissioners
would be vacated as to the portions of their respective
townships included in the City of Evanston, upon the or¬
ganization of the new township on January 1, 1902. As
the object of the organization of the new town is to
17
abolish the offices of highway commissioners and town
O v
clerk, there would be no occasion for the election of their
successors in the new town, and the office of supervisor
could, without inconvenience to the public, stand vacant
until the next town election, which would be on the date
of the city election, the first Tuesday in April, 1902.
In the meantime the City of Evanston could pass the
proper ordinances for the consolidation of the township
and city government, so that all necessary officers could
be elected on the date of the city election, the first Tues¬
day in April, 1902.
Your committee would therefore recommend the passage
of the following resolution:
Resolved, that the County Board of Cook County be
and the same is hereby requested to provide that the por¬
tions of the territory of the Townships of Evanston, Niles
and New Trier included within the boundaries of the City
of Evanston be organized into a township to be named
the Township of Ridgeville; such organization to take
effect on and after the first day of January, 1902, in ac¬
cordance with an act entitled "An Act to authorize
county boards and counties under township organization
to organize certain territory situated therein as a town,"
approved May 23, 1877, and all amendments thereto.
And he it further resolved, that the city clerk of the
City of Evanston be instructed to present a certified copy
of this resolution to the president of the county board
after the first Tuesday in April, 1901.
Your committee would also recommend the passage of
the following resolution :
Whereas, the City of Evanston embraces portions of
the three Townships of Evanston, Niles and New Trier;
and,
18
IFTiereas, It is to the interest of the territory embraced
within the City of Evanston that it should be organized
into a separate township; and,
Whereas, The City of Evanston has passed a resolution
requesting the county board to so organize such terri¬
tory ;
Now, therefore, he it Resolved, that a committee of
twenty-five, to consist of the mayor and such members
of the city council of the City of Evanston and citizens
of said city as the mayor shall select, shall be appointed
to wait upon the county board and urge the passage of
such resolution by said board, after the first Tuesday in
April, 1901.
Exhibit D.
Hon. Alfred Van Steenherg, Chairman Judiciary Com¬
mittee:
Dear Sir—At your request, we have examined the
law in regard to the formation of townships, and more
particularly the provisions of the act approved May 23,
1877, in force July 1, 1877, and the amendments thereto,
with reference to the application of the city council of
the City of Evanston, asking for the organization of a
township, to be called Ridgeville.
From such examination we are of the opinion that
there is no law authorizing the county board to organize
a township out of territory embraced within the limits of
any city, when such limits extend ever a portion of two
or more townships.
Section 1 of the act of 1877, relied upon by the city
council of Evanston, applies only to cases of a city of
not less than three thousand inhabitants lying wholly
within one township.
19
On the face of section 1 of the act of 1877 it appears
broad enough to cover any city of not less than three
thousand inhabitants. The Supreme Court of this state,
however, has decided that section 1 should be read in
connection with all the enactments in regard to township
organization, and that it does not apply to a city the
territory of which is co-extensive with three whole town¬
ships. In rendering that decision the Supreme Court
further held that section 1 was intended to apply to cities
within a township.
It is our opinion, therefore, that the request of the
city council of Evanston cannot legally be granted.
Respectfully submitted.
Edwin W. Sims,
County Attorney.
W. F. Struckman,
Assistant County Attorney.
20
POINTS AND AUTHORITIES.
1. Mandamus proceedings will lie to compel the per¬
formance of a public duty. In such case the word
"may" will be construed to mean " must."
Fowler Perkins, 77 111., 271.
Village of Glencoe v. People, 78 id., 382.
III. State Board of Dental Examiners v.
People, 123 id., 227.
Brokaw v. Commissioner of Highways,
130 id.. 482.
People v. Commissioner of Highways, 158
id., 197.
2. The constitutionality of the act of 1877, being Par.
133, Chap. 139, Starr & Curtis' Stat., has been twice
passed upon and upheld.
People v. Brayton, 94 111., 341.
People v. Ilazehoood, 116 id., 319.
3. By giving the language of the statute its ordinary
meaning, it applies to the case of the City of Evanston,
and this meaning should be given unless there is reason
for construction for the purpose of avoiding the uncon¬
stitutionality of the act.
Wygant v. People, 50 111. App., 182.
Steere v. Brown ell, 124 III., 29.
Ottawa Gas Light & Coke Co. v. Downey,
127 id., 204.
C. <6 X. 11'. By. Co. v. Chicago, 148 id.,
141.
People v. Same, 152 id., 546.
21
4. In the case of The People v. Br ay ton it was nec¬
essary to construe the act so that its plain reading should
not apply to the consolidation of several townships sit
uated within the limits of a city, in order to prevent its
coming in conflict with Sec. 5, Art. 10, of the con¬
stitution of 1870, which prohibits the adoption or re¬
jection of township organization in a county without a
vote of the people. But no such construction is required
in the case of the combination of several fragments of
townships situated within a single city, as is the case of
the City of Evanston.
5. There is more necessity for the act in the case of
the City of Evanston, on account of the annoyance and
expense caused by the fact that it is made up of portions
of several townships, than if it were embraced entirely
within the limits of a single township. In the one case,
it would be simply the abolition of double government,
while in the case of the City of Evanston it would be the
abolition of quadruple government. It is evident that
the legislature had in mind the curing of just such evils,
and it would be pure judicial legislation on the part of
the court to hold that the legislature intended to cure the
milder case and not provide a remedy for the more ag¬
gravated one.
6. The only constitutional limitation upon the legis¬
lature as to the organization, division or enlargement oj
townships is found in Sec. 5, Art. 10, of the constitution
of 1870, and prohibits the adoption or rejection of town¬
ship organization in a whole county without a vote of the
people.
People v. Brayton, 94 111., 341.
22
7. The legislature has in many instances vested in
the county board the power to divide, enlarge and create
new townships without a vote of the people residing in
the territory affected. Sec. 1, Art. 3, Chap. 139, be¬
fore the recent amendments, so provided; as shown by
the latter clause of Sec. 2 of said article it provided for
exactly the case of the City of Evanston, namely, the
joining of the fragments of portions of several towns
into a new township.
8. In People v. Brayton the Supreme Court held
that the act of 1877 as to its purpose was identical with
this section 1 of article 3, except that in the latter case
it was required that a certain area should be left in the
township from which a portion was taken and should ex¬
ist in the township created, which provision did not ap¬
ply to the act of 1877. If this is true, then if under
Sec. 1 of Art. 3 the power existed to unite fragments of
townships into a new township, and this section was iden¬
tical in its purpose with the act of 1877, the Supreme
Court held directly that the act of 1877 provided for the
case of uniting several parts of a township into a new
township ; and in order to hold otherwise in the case at
bar it would he necessary to modify or reverse the ruling
of the court in the case of People v. Brayton, 94 111.,
341.
9. The principal value of township organization arises
in an agricultural district, and the machinery of the town¬
ship in urban territory becomes a useless and unnecessary
expense, and it has been the disposition of the legislature,
realizing these facts, to provide for consolidation and
modification in the management of township affairs, so as
to apply to the needs of both classes of territory. (Sec.
23
4, Art. 4, Chap. 139.) The case of the City of Evanston
is an aggravated one, and in interpreting the township
act and its various amendments as applied to its case, this
general principle of the legislature should be borne in
mind.
24
ARGUMENT.
We presume that it will not be disputed that the facts
set forth in the petition and exhibits in this case present
one where the utter uselessness and expensiveness of
rural township organization as applied to urban territory
is brought out in the most forcible manner. It would
be hard in the whole range of the mismanagement of
C O
municipal affairs to conceive of a more aggravated con¬
dition than the management of the township affairs of the
City of Evanston under the present plan. The condition
of things is one that should appeal strongly to both the
court and legislature for remedy. Much newspaper
clamor has been indulged in regarding the condition of
rt w O
the City of Chicago in regard to township affairs, but its
condition is mild compared with that of the City of
Evanston. In the City of Chicago, under the exception
of Sec. 4, in Art. 4, of the township act, most of the
useless taxation and expenditure of public moneys in
township matters is obviated, but in the case of the City
of Evanston every one of these expenditures is trebled
and inextricably confused by the multitude of township
officials to be dealt with in the one city, and the separate
accounts required to be kept both by the county clerk
and the township and city officials, on account of this
unbusinesslike condition of affairs.
We assume that the county board with this data be¬
fore it could not, and did not, attempt to deny the neces¬
sity for action, and that the refusal to act was based en¬
tirely upon the assumption that it had no power to grant
the relief requested.
25
We also assume for the sake of argument in this case
that the only point that will be raised by the respondent
is this lack of power, and in case other points should be
raised, we reserve the right to answer the same. We
think we are justified at this time in not confusing the
case by discussing other points on account of the opinion
of the county attorney upon which the decision of the
county board was based, which is made an exhibit in the
petition filed herein.
We think the authorities cited in point "1" suffi¬
ciently show without any further discussion the right of
the City of Evanston to a peremptory writ of mandamus,
in the event that the court should hold that the county
board had the power to grant the request, and refused,
and still refuses, to do so.
It will be noticed that the request provided that this
organization should take effect on January 1, 1902. The
reason for this is self-evident. If the county board had
granted the request at the time the application was made,
time would have thus intervened for any person or office¬
holder who deemed himself injuriously affected by the
proceeding, and who believed the same to be illegal, to
raise and test the question in the court, and by having
the organization take effect on January 1, 1902, abun¬
dant opportunity would be given the City of Evanston to
pass the necessary ordinances and have all matters of
property rights and other questions adjusted before the
next spring election, so that the new organization might
take effect on the third Tuesday in April following, being
the annual municipal election of the city, and the new
organization thus be installed with the least possible fric¬
tion and in the most businesslike manner. And we earn¬
estly request the court in this matter to render a speedy
26
-decision, so that in the event it should hold that the
county board should grant this request, the new organiza¬
tion may take effect on January 1, 1902.
The authorities are so conclusive upon the constitu¬
tionality of the act of 1877 and upon the right of the
legislature to vest the county board with power to create
a township out of the fragments of three townships with¬
out a vote of the people, that it would seem useless to
waste the time of the court with discussions upon these
points. The only question, then, that would seem to
need a decision in this case is: Does the statute of 1877
apply to the case where a new township is attempted to
be created out of territory embraced in a city of more
than 3,000 inhabitants, including in its boundaries por¬
tions of three townships?
First, then, what was the business reason for the legis¬
lature passing such an act? It seems very plain upon its
surface that it was for the purpose of relieving urban
territory from the burden of useless machinery and
officeholders in the management of its municipal affairs.
Second, does that reason apply to the City of Fvans-
ton ? As appears by the petition, nearly the whole of
the territory included in this city is subdivided into lots,
and the whole of it may be said to be held for that pur¬
pose and to be urban in its character. In this territory
the three sets of highway commissioners have absolutely
no jurisdiction. All they can do within the territory in¬
cluded within the city in their respective townships is to
vote taxes upon it, one-half of which, under the existing
statute, they have a right to spend on the territory out¬
side of the limits of the city. It would be hard to find
a stronger case of taxation without representation
27
than follows this condition of affairs. This pro¬
vision for the expenditure of one-half of the
taxes collected within the city limits of a township on the
territory outside was intended for rural territory, and
there is an element of justice in it as applied to such a
territory. A country village lives off of the surround¬
ing farms and territory, and there is an element of poetic
justice, if not of legal right, in that it should be burdened
for the maintenance of the highways leading into it from
such surrounding territory. This reasoning fails al¬
together as applied to the City of Evanston. In the
first place, the amount of unincorporated territory of the
Township of Evanston is so small as compared with the
incorporated territory that the reasoning would have no
application. The court by comparing the portion of the
Township of Evanston colored green upon the map with
the portions colored white and yellow will see how unjust
it would be that this small portion of territory should
have the right to spend one-half of all the taxes raised
upon the incorporated portion of territory within its own
limits. This injustice is emphasized when the court con¬
siders that the whole assessed valuation of this little frag¬
ment of territory is only about $100,000, while that of
the whole township is nearly seven million dollars. And
yet this little portion of territory would be entitled upon
a full levy by the highway commissioners to have one-
half of the money raised in the City of Evanston, being
about $30,000, or $15,000, expended within its borders;
and in order to secure this condition of things, subject
itself to an assessment of only about $600. And as
shown by a report of the judiciary committee of the City
of Evanston, with the assistance of the other township
authorities, this condition of things might be so enlarged
2S
that $50,000 would be levied upon the City of Evanston,
and $25, OoO of this spent on this unincorporated ter¬
ritory.
We think these figures fully justify the assertion of
the outrageous condition of municipal mismanagement
that the existing law tolerates. True, it may be said
that up to this time there is no evidence that the high¬
way commissioners of the three portions of townships
composing the City of Evanston have ever gone to any
such unjust extremes, but it is too dangerous a thing to
have any such power vested in any body of men with the
constant temptation to abuse that exists in all municipal
affairs. More especially is this true since the petition
shows that these commissioners, so far as the Township
of Evanston is concerned, do not represent the selection
of the majority of legal voters, on account of the fact
that their offices being so entirely useless that they seem
to create no interest in the City of Evanston, and also
on account of the fact that the holding of the township
election is so inconvenient that the great mass of voters
are compelled to ignore it. We therefore have this ex¬
traordinary taxing power vested in a set of men elected
by a small minority of the legal voters of the territory
affected by their powers. It is no answer to all this to
say that this is the fault of the legal voters. The right
of self-government should not be made unnecessarily
burdensome, and where unnecessary burdens are imposed
the power imposing them cannot excuse itself behind the
pretext that the evils arising from them are caused bv
the failure of the party burdened to perform his duty.
The court will take judicial notice of the fact that
in the month of April the City of Evanston has three
elections—township, municipal and school. It would
29
seem that the application of a little of the business sense
that men bring to bear upon their private business would
eliminate some of these burdens.
But, perhaps, the condition that should appeal most
strongly to the court in this case is the unjust diversity
of taxation imposed by the anomalous condition of the
city. It seems extremely absurd that one man on one
side of a street in the city should be compelled to bear
50 per cent, more of its municipal, school, state and
county burdens just because he does not live on the other
side of the street. Yet this is exactly the condition
that obtains in regard to property on the boundary lines
of Niles and Evanston, in the City of Evanston, as shown
by the data set out in the petition.
It may be an answer to this to say that it is the busi¬
ness of the board of equalization to obviate this lack of
uniformity. But we are confronted with a condition and
not a theory in this matter, and the fact remains that no
such equalization exists or has existed, and it is not likely
that it ever will exist, because in order to create uni¬
formity it will be necessary to change the whole character
of the assessment of the Township of Niles for this little
80-acre tract included in the City of Evanston. Boards
of review and equalization are but human, and with all
the political and other influences that would be brought
to bear against any such radical change as affecting the
country townships, it has been and will probably con¬
tinue to be utterly impossible to get any uniformity, ex¬
cept by the consolidatian of the territory into one town¬
ship.
Coming now to the point as to whether the decision in
Peoples. Brayton, 94 111., 341, has committed the Su¬
preme Court of this State to the doctrine that no new
30
township can be organized, unless the city is included
within the boundaries of a single township, let us
consider what the court passed upon and decided in that
opinion. The mere fact that language av:is used which,
standing by itself, might warrant such a conclusion,
will not justify the court in holding that this conclu¬
sion was intended, unless it appears from all the facts
in the case that the language was necessary to the
decision of it, and that the facts of the case at bar
are parallel so as to be embraced in the range of the
decision. The interpretation asked for by the
City of Chicago in the case under discussion was right in
the teeth of the constitutional provision of section 5.
article 4, as it might result in the abolition of township
organization without the vote of the people, and it was
also in the teeth of section 37 of the township act,
which provided a method for the uniting of two or more
towns by such a vote. But the union of fragments of
towns could never result in the abolition of township
organization without a vote of the people, and hence is
not opposed to the constitution; and instead of this in¬
terpretation of the act being opposed to any statutory
provision, was directly in harmony Avith section 1, article
3, chapter 139, Avhich, as shown by the latter clause of
section 2, provided for the formation of a new township
out of the fragments of other townships without a vole
of the people. It will be noted that this section 1 does
not provide for the joining of two toAvns. That case is
covered by section 12 and is treated as a distinct poAver.
When, therefore, the legislature has seen fit to differenti¬
ate these powers, Avhy should it be contended that a decis¬
ion referring to one poAver should be held to govern the
exercise of the other power ? But the very decision itself
31
for which such a result is claimed shows that instead of
destroying the power conferred upon county boards by
section 1 of article 3, it endorses and ratifies that power.
On page 346 of the opinion the court says:
" Under section 26," (which is section 1 of article 3),
"the board has full power to alter the boundaries of
" towns, to change town lines, and to divide, enlarge and
" create new towns; but no town shall be created of less
"territory than seventeen square miles. Were it not
" for the requirement that a new town created should
" contain not less than seventeen square miles, this sec-
" tion might be held broad enough to confer the same
"power as does the first section of the act of 1877, but
"the limitation imposed shows clearly that it was not
" intended that such power should be given."
Now, what does this language mean? By the last
clause of section 2 of article 3, which reads: "Pro-
" vided, that where parts of several towns are taken to
"make a new town,1' etc., it is clearly shown that one
of the powers vested by section 26, mentioned in the
opinion, was the right to create a new town out of parts
of other towns, and this decision endorses this right by
the language quoted, and goes farther and says that if it
were not for the question of area, the act of 1877 would
be unnecessary, because the very power vested by the
act of 1877 in the county board, namely: the creation of
new towns out of parts of towns, was provided for in
section 26, except as to the limitation of area.
Surely, therefore, no matter what loose language the
court may have used in the decision, in the face of such a
clear and unmistakable endorsement of the power as in
the case at bar to create a new town out of fragments of
other towns, without a vote of the people, there can be
32
no doubt as to the intention of the legislature that the
act of 1877 should apply to the case of the City of
Evanston.
Now, the only language that can justify the conclusion
contended for by the county attorney is the latter clause
of the last paragraph on page 316 of the opinion, which
reads as follows: "An examination of the different sec-
" tions of chapter 139 will demonstrate that previous to
"the passage of the act of 1877 the county board had no
" power to organize a town out of territory composed of
"a city situated in an organized town."
And also the further language on page 347: "In
"other words, where a town organized under the town-
" ship organization law contained within its limits a city
" with a population of not less than three thousand in-
" habitants, the county board was authorized to establish
"a town out of the territory embraced within the city."
Now, there is nothing in either of these pai'agraphs
that states positively that the territory must be embraced
within the limits of a single town. Tnat is brought into
them by pure inference. The court might have had in
mind simply one of the cases provided for in the act of
1S77, and in order to reconcile the opinion with itself it
is necessary so to decide; otherwise its language in re¬
gard to the scope of power vested by section 26, and by
analogy in section 1 of the act of 1877, becomes contra¬
dictory and confusing. What the court was attempting
to emphasize was that the city should be embraced within
the towns and not the towns within the city, and the an¬
tithesis was made stronger and more forcible by taking
the case of a city embraced in a single town and compar¬
ing it with the case of a city embracing within itself sev¬
eral towns, and such a construction of the language of
7 c; O
33
the court makes the whole decision intelligible and co¬
herent. But, as has been already suggested, if there can
be doubt as to the construction of this opinion, the court
should resolve it so as to carry out the intention of the
legislature, and if it appears that evils existing in the
case of a city embraced in a single town would be trebly
aggravated in the case of a city containing fragments of
three towns, then, unless thei'e is some constitutional ob¬
jection, the inference should be indulged in that the legis¬
lature, in attempting to reach such evils, also had in
mind the case where the same evils were trebly magni¬
fied, and that the latter case should be brought within the
scope of the remedy provided for the other.
The plain language of the statute, without any con¬
struction, applies clearly to the case of the City of Evans-
ton and does not run counter to any constitutional limi¬
tation or any statute existing at the time of the passage
of the act of 1877; or, indeed, to any statute or amend¬
ment since that time. For we assume in this argument
that counsel do not contend that the amendments that
have been made to the township law since the rendering
of this decision will at all modify or limit the power con¬
ferred by the act of 1877 on the county board.
The county board perhaps would be justified in
exercising the discretion conferred upon it by the
statute by the word "may" used therein, and in re¬
fusing to divide up a township where the residue would
be so small and so poor that it would be an injustice to
impose upon it the burdens of township government.
But no such condition arises in the case at bar. Over
3,100 acres would be left of the Township of Evanston,
with an assessed valuation of about $1,500,000. The
court will take judicial notice of the fact that this valua-
34
tion is greater than that of nine-tenths of the rural
townships in the state. And as far as the Town of Niles
is concerned it would be taking only eighty acres and
leaving over 15,000 acres. In the case of the Town of
New Trier 300 acres would be taken and 10,000 acres
left, and with the additional advantage that the territory
left would make the boundaries of the political and
school townships coincident.
Under all the circumstances of the case and looked at
from every standpoint, it would seem therefore that it
was the duty of the county board, if it had the power,
to grant the prayer of the City of Evanston, and under
the decision and authorities cited, it would seem clear
that the provisions of the statute do apply to the case of
the City of Evanston, and that a peremptory writ of
mandamus should therefore be awarded against the
•county board, ordering it to act in the premises and to
grant the prayer of the petition.
Respectfully submitted.
Joseph E. Paden,
Corporation Counsel and Attorney for Petitioner.
Alexander Clark,
Of Counsel.
3 5556 003 674 074