a county purpose, two members of the court dissenting.

Illinois cases.

An apparently irreconcilable conflict of decisions will be found in the Illinois reports on the question whether the building and maintenance of highways and bridges is a corporate purpose of the counties, cities, etc., of the state.

While the rule at present seems to be that the function is a corporate purpose, a number of cases have been decided under the contrary view. Shaw v. Dennis (1849) 10 Ill. 405; Will County v. People (1884) 110 Ill. 511; Heffner v. Cass & M. Counties (1901) 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201; People ex rel. Franklin County v. Williamson County (1918) 286 Ill. 44, 121 N. E. 157, approved and followed in Chicago, M. & St. P. R. Co. v. Lake County (1919) 287 Ill. 337, P.U.R.1919D, 171, 122 N. E. 526; St. Hedwig's School V. Cook County (1919) 289 Ill. 432, 124 N. E. 629. See also Vandalia Levee & Drainage Dist. v. Vandalia R. Co. (1910) 247 Ill. 114, 93 N. E. 53, followed in Shabbona Drainage Dist. v. Cornwall (1917) 281 Ill. 551, 117 N. E. 990.

In the earliest Illinois case which considered the question in hand, it was held that the erection of a bridge and the repair of roads are state purposes, and not corporate purposes, within the constitutional provision of Illinois relating to the imposition of taxes for corporate purposes. Shaw v. Dennis, supra. It will hardly be denied, the court said, that the legislature has a right to impose a local tax upon a town or city, precinct or county, for some local improvement, as the erection of a bridge or the repair of a road.

ties of aiding towns in the construction of bridges is not invalid on this ground. Ibid.

The court in the foregoing case quoted approvingly the language of Cooley, J. (Taxn. 478), where that profound scholar of municipal governmental affairs said: "Elsewhere in this work the public highways have been spoken of as matters of general concern to the people of the whole state. In a certain sense they are of local concern, because the local organizations construct and support them; but they are constructed for the general benefit and use of all the people, and only turned over to the localities as a matter of apportionment. This being the case, any town, city, or county that neglects its duty in this regard may be compelled, by the interference of the state, and on state account, to perform it. This doctrine applies to common highways."

"Roads and bridges are not merely for local use, but are for the use and accommodation of all citizens of the state, and it is within the power of the general assembly to provide that counties shall build roads and bridges, and that a county shall pay its proportionate share of the cost of a bridge across a stream on the boundary line between it and another county." People ex rel. Franklin County v. Williamson County (1918) 286 Ill. 44, 121 N. E. 157. The general assembly may, under Ill. Const. art. 9, §§ 9 and 10, the court said, compel a municipal corporation to perform any duty which relates to the general welfare and security of the state, although the performance of the duty will result in taxation or create a debt to be paid by taxation. The foregoing case was cited with approval in Chicago, M. & St. P. R. Co. v. Lake County (1919) 287 Ill. 337, P.U.R.1919D, 171, 122 . E. 526, holding that municipal corporations may be compelled to bear their share of the cost of eliminating a dangerous grade crossing on a state highway.

Building bridges and highways was regarded in another case as being a county or state interest, and not a local matter to be left to the determina

tion of the people of the municipality. Drainage Comrs. v. Rector Special Drainage Dist. (1915) 266 Ill. 536, 107 N. E. 895.

In St. Hedwig's Industrial School v. Cook County (1919) 289 Ill. 432, 124 N. E. 629, building bridges is enumerated as one of the things for which the Illinois legislature can impose a tax or a burden upon municipalities.

The opening and keeping in repair of common highways, and the erection and maintenance of bridges by which they are rendered useful by the people, were held in an early case to be county purposes for which the county authorities may be vested with power to tax, under Ill. Const. art. 9, § 5. Johnson v. Stark County (1860) 24 Ill. 75.

The power of the Illinois legislature to invest in the corporate authorities of cities and towns the right to levy taxes for streets and bridges, under Ill Const. art. 9, §§ 9 and 10, is not now questioned. See People ex rel. Adams v. New York, C. & St. L. R. Co. (1925) 316 Ill. 452, 147 N. E. 494; People ex rel. Carr v. Pittsburgh, C. C. & St. L. R. Co. (1925) 316 Ill. 410, 147 N. E. 492.

In an action by two counties against drainage commissioners for damages alleged to have been sustained by the counties in consequence of the drainage commissioners (acting under statutory authority) having torn down a bridge built and maintained by the counties, it was contended on behalf of the counties that to deny their right of action would be to impose a tax on them or burden them with a debt for a corporate purpose, in violation of Ill. Const. 1870, art. 9, §§ 9 and 10, but the court denied the soundness of the contention, building a bridge being held to be a purpose in which the people of the state at large were interested, and not a strictly local corporate purpose. Heiner v. Morgan & Cass Counties (1901) 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201, following Will County v. People (1884) 110 Ill. 511. (This holding was made upon the assumption that counties are included in the phrase "municipal corporations," as used in §§ 9 and 10; which is, it has

been held, an incorrect assumption. Wetherell v. Devine (1886) 116 Ill. 631, 6 N. E. 24.)

The Heffner Case was cited and stated approvingly in People ex rel. Moline v. Brunston (1916) 274 III. 62, 113 N. E. 75.

One section of an Illinois Farm Drainage Act which required district drainage commissioners to make all necessary bridges and culverts along or across any public highway which were deemed necessary for the use or protection of the improvement, at the expense of the drainage district, where such necessity arose from the construction of a purely artificial ditch at a place or along a line where no watercourse ever existed, was adjudged unconstitutional in so far as it empowered the drainage commissioners of a particular district to construct bridges and culverts in public highways of a town situated partly within the district, and to collect the cost thereof from the road and bridge fund of the town, as repugnant to both §§ 9 and 10, Ill. Const. art. 9. Morgan v. Schusselle (1907) 228 Ill. 106, 81 N. E. 814. The drainage commissioners were not corporate authorities of the town, having been neither directly. elected by the people of the town nor appointed in any mode to which they had given their assent, and the legislature was prohibited by Const. art. 9, § 9, from granting to the commissioners the right to impose a burden, to remove which resort must have been had to taxation upon the town, without its consent. Ibid. And this was true notwithstanding the fact that the commissioners were not vested with power to levy taxes to discharge the expense of the bridges, etc. Ibid. The expense of constructing a bridge, for which the commissioners sought recovery in the case, was not a debt contracted by the town authorities, nor had the authorities or inhabitants of the town in any manner manifested their assent to the imposition of the burden of paying for it. It was, therefore, a clear attempt on the part of the legislature to impose a debt necessitating taxes upon the town, without its consent and against its will. Ibid. As was pointed

out in Union Drainage Dist. v. Highway Comrs. (1906) 220 Ill. 176, 77 N. E. 71, the case was distinguishable from Heffner v. Cass & Morgan Counties (1901) 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201, since there are "material and important distinctions between that action of trespass for the alleged wrongful removal by drainage commissioners of a bridge over a natural watercourse on or near a county line between two counties not under township organization, which were under a duty of maintaining a bridge over such watercourse, and where the object of removing the bridge was to provide for an increased flow of water in such watercourse, and this action of debt for the recovery of the cost of [a bridge over] a purely artificial. ditch where no natural watercourse ever existed, and where there had been no bridge nor any duty to maintain one, and the ditch was for the sole and exclusive benefit of a drainage district constituting not more than three eighths of the territory of the two towns, which is presumed by law to have been all the lands benefited by the ditch." Ibid. Language used in the Heffner Case, supra, inconsistent with the views expressed in the Morgan Case, supra, was said by the court to have been unnecessary to the decision of the case, and not controlling in the case at bar.

The decisions in the Heffner and Morgan Cases, supra, were declared irreconcilable in People ex rel. Burow v. Block (1916) 276 Ill. 286, 114 N. E. 527, and the Heffner Case was expressly overruled. In the overruling case drainage commissioners were held to have no power to construct a ditch across a highway, and require the towns maintaining the highway to bridge the ditch, since the drainage commissioners were not corporate authorities of the town, and had, therefore, no right to thrust a burden on the towns necessitating taxation, even though an act of the legislature (held unconstitutional) purported to invest them with the power.

The Block Case, supra, while perhaps subject to criticism, is regarded as having settled the law in the state.

It was followed as controlling in Brougher v. Lost Creek Drainage Dist. (1917) 277 Ill. 156, 115 N. E. 190 (another case of the removal by drainage commissioners of a bridge and refusal to rebuild upon demand of the highway commissioners), and People ex rel. Speck v. Peeler (1919) 290 Ill. 451, 125 N. E. 306; but after a drainage district has built a bridge made necessary by a ditch, its liability ceases, and the town or municipality must repair it and restore it when needed.

In Chicago, M. & St. P. R. Co. v. Lake County (1919) 287 Ill. 343, P.U.R.1919D, 171, 122 N. E. 526, the ditch in the Block Case, supra, is said to have been made "for the benefit of the drainage district,-a purely local corporate purpose,—and was not in any sense for the public benefit."

The cost of eliminating a dangerous grade crossing of an extensively used state highway over a railroad track, apportioned by a legislative board, 15 per cent against the county in which the crossing was removed, and 25 per cent to the town similarly situated, was held in Chicago, M. & St. P. R. Co. v. Lake County (1919) 287 Ill. 337, 122 N. E. 526, not for a local corporate purpose, the improvement (a subway) being held one for the safety and protection of the general public, for the reason, as the court said, "that is a matter in which the state is interested in its governmental capacity, and while the state may not deprive a municipality of its discretion in incurring expense for improvements of a local corporate character, such municipality cannot stand in the way of the state's exercise of its powers for the preservation of life and the promotion of the public welfare." It is further said in this case that when the state acts in cases "where the exercise of its powers are necessary, as where the safety of the general public demands the action, it becomes the duty of the local authorities to provide the means for complying with the order and requirement, 'as in the case of any other legal obligation, and the performance of that duty is not prohibited by either § 9 or § 10 of article 9 of the Constitution.'

An Illinois Levee Act which authorized assessments by drainage officers against towns for benefits to the highways of the towns was held not to violate §§ 9 and 10 of Ill. Const. art. 9. Vandalia Levee & Drainage Dist. v. Vandalia R. Co. (1910) 247 Ill. 114, 93 N. E. 53 (followed in Shabbona Drainage Dist. v. Cornwall (1917) 281 Ill. 551, 117 N. E. 990), where the court said: "Section 31 of article 4 of the Constitution, which was adopted as an amendment to the Constitution in 1878, expressly provides that the legislature may vest the corporate authorities of drainage districts with power to construct and maintain levees, drains, and ditches by special assessment upon the property benefited thereby. The only limitation upon the property that may be assessed is that it must be property benefited by the improvement. If the highways of a town are benefited by the improvement, they fall within the class of property that may be assessed therefor, such assessments, however, being enforceable against the town, and not against the specific property benefited."

City taxes for streets and bridges were evidently regarded by the court in People ex rel. Stevenson v. Illinois C. R. Co. (1923) 310 Ill. 212, 141 N. E. 822, as being taxes for corporate purposes, an act of the legislature purporting to validate a void city tax levy for various purposes, among which were taxes for such purpose, being held unconstitutional as being a legislative imposition of a tax for a corporate purpose, in direct violation of Ill. Const. art. 9, § 10.

13. Expense of supporting the courts, The question whether the expense of building courthouses is a corporate purpose of taxation is treated in III. b, 11.

See infra, III. c, State ex rel. Webb v. Brown (1915) 132 Tenn. 685, 179 S. W. 321, holding juvenile courts are a county purpose within Tenn. Const. art. 2, § 29.

The establishment by the California legislature of the office of city recorder for Fresno, the official being 46 A.L.R.-46.

given dual duties of justice of the peace and city recorder and his compensation for trying violations of the Penal Code being made payable by a city board of trustees, was not regarded by the court in Prince v. Fresno (1891) 88 Cal. 407, 26 Pac. 606, as being prohibited by any article of the state Constitution, § 12 of article 11 being among those referred to.

In Missouri the duty of providing courts of justice is a governmental function of the state alone, which can require a given locality to provide funds for the support of those courts created for such locality. Young v. Kansas City (1899) 152 Mo. 661, 54 S. W. 535, citing State ex rel. Hawes v. Mason (1899) 153 Mo. 23, 54 S. W. 524, and State ex rel. Aull v. Field (1894) 119 Mo. 614, 24 S. W. 752, in which it was said: "We deem it within the power of the legislature to impose a tax upon a particular subdivision or municipality of the state, when, in its judgment, it is for the benefit of that locality as well as the state at large."

Hence an act requiring a city to bear the expense of a criminal court sitting in it is not violative of Mo. Const. art. 10, § 10. Young v. Kansas City (1899) 152 Mo. 661, 54 S. W. 535, supra.

An alternative or argumentative ground of decision in Chicago v. Knobel (1908) 232 III. 112, 83 N. E. 459 (holding Cook county could be made to pay certain expenses in connection with the municipal court of Chicago), is stated thus in the opinion: "It requires no extended investigation into this Municipal Court Act to see that many of the duties heretofore performed in the city of Chicago by the state courts are now performed, under this act, by the municipal court. The state is interested in the enforcement of laws in all parts of its territory. The necessity for such enforcement in incorporated towns, and especially in large cities, for the good of the state, is certainly as vital as in the unincorporated territory. On the principle of commutation discussed in People ex rel. Gross v. Stookey (1881) 98 Ill. 537, and

Wetherell v. Devine (1886) 116 Ill. 631, 6 N. E. 24, as to a fair division of the expenses between the county and city governments, said § 25 of the Municipal Court Act must be upheld. The results arising from the enforcement of the laws within our large cities are so closely interwoven with the well-being of the city, county, and state governments that it would be somewhat difficult on a question of this kind, based upon the proportionate amount which should fairly be paid by each, to hold a division of expense between the city, county, and state unconstitutional. We do not think the constitutional provisions relied on are in any way infringed by the apportionment of expenses between the county and city governments." It is stated in STATE EX REL. METROPOLITAN UTILITIES DIST. v. OMAHA (reported herewith) ante, 602, that the decision in the Knobel Case was evidently "grounded upon the proposition that the tax imposition was for a governmental purpose, as distinguished from a local, corporate, or private purpose," but this is subject to question.

In State ex rel. Aull v. Field (1894) 119 Mo. 593, 24 S. W. 752, an act changing the town where a circuit court was to be held, which provided that the presiding judge was to choose a suitable place in which to hold the court, and that the expense of renting and keeping it should be paid by the town in which the court sat, was attacked as void because, it was contended, it authorized municipal funds, raised by municipal taxation for municipal purposes, to be applied to (what was claimed to be) a state purpose, upon the theory that Mo. Const. art. 10, § 10 (referred to as § 11 in the opinion), limits the power of cities and towns to taxation for municipal purposes. The court refused to adopt this view, saying the tax for providing the courthouse was not a municipal tax, but was to be levied under the act of the legislature for a state purpose, the city being a mere agency of the state to collect it, and (having discussed its validity with a view to the inequality of taxation under it) con

cluded: "We deem it within the power of the legislature to impose a tax upon a particular subdivision or municipality of the state when, in its judgment, it is for the benefit of that locality as well as the state at large;

The statement quoted above was approved by the supreme court of Oklahoma in Thurston v. Caldwell (1913) 40 Okla. 206, 137 Pac. 683.

The state at large has a very important interest in the moral and social welfare of the children residing within its borders, and the reform of juvenile delinquents is a purpose for which the legislature may, under Mo. Const. art. 10, § 10, compel large cities to provide juvenile courts and to support its wards in reform schools. Ex parte Loving (1903) 178 Mo. 194, 77 S. W. 508.

See also, in this connection, State ex rel. Industrial Home v. Pike County (1898) 144 Mo. 275, 45 S. W. 1096 (holding that the legislature may compel counties to bear the expense of girls sent from within their borders to a state reform school).

In Washington, also, the expense of supporting the state judicial system is a state purpose of taxation, and municipal corporations may be required to levy taxes therefor. See State ex rel. Clausen v. Burr (1911) 65 Wash. 524, 118 Pac. 639.

It was unsuccessfully contended by counsel in Re Salary of Superior Ct. Judges (1914) 82 Wash. 623, 144 Pac. 929, that the superior courts of Washington are state courts and the judges thereof state officers, and that a statute purporting to authorize the counties to make appropriations for the salaries of such judges authorized appropriations for state rather than county purposes, and conflicted therein with Wash. Const. art. 11, § 12. The court denied that the superior courts are state courts alone, since they perform county as well as state functions, and the judges thereof are elected by the counties in which they sit, and they are not designated as state courts by the Constitution. For these reasons, the court distinguished Shelby County v. Six Judges (1875) 3 Shan