relators, as such commissioners, have negotiated with some of the owners for a part of the property embraced within the limits of the park, to procure the title thereof for the city; and have, generally, undertaken to perform the duties enjoined upon them as commis. sioners by the act, and have paid and become liable to pay several thousand dollars; and that the city of Chicago has, by its proper officers, the board of public works, recognized the relators as the lawful commissioners authorized to take charge of, improve, manage and control this park.

The relators further allege that they had, as commissioners, ascertained from information and from estimates made by them, as well as from negotiations to obtain the lands belonging to private persons, authorized to be taken, that it would require the issue, by the mayor, comptroller and city clerk, of bonds to the amount of $500,000, to be used for the purpose of paying for the land to be taken, and they determined, and now allege the fact was and is, that bonds to the amount of $500,000 should be issued immediately for that purpose; and that they acting as such commissioners, by and through their president, E. B. McCagg, did, on the 14th of May, 1869, apply in writing to those officials, at their respective offices, to issue such bonds, which they refused, in writing, to do. And the relations allege, by reason of such refusal they are prevented from acquiring for the city of Chicago, for the purpose of a public park, any of the lands belonging to private persons or corporations, and from enlarging and improving the park, as contemplated by the act, anc aver they have no adequate remedy except by mandamus.

M. C. Goudy and Thomas Hayne, for relator:

1. The legislature has full power over municipal corporatione Cooley's Const. Lim. 192, 193, 231, 235, 250; Field v. People, 2 Scam. 79; Mason v. Wait, 4 id. 127; People v. Reynolds, 5 Gila. 13; People v. Ottawa, 48 Ill. 233; Thomas v. Leland, 24 Wend. 87; Town of Guilford v. Chenango, 13 N. Y. 143; Kirby v. Shaw, 19 Pa. St. 258; Sharpless v. Mayor, 21 id. 166; Dunr.ore's Appeal, 52 id. 374; State v. St. Louis County Court, 34 Mo. 572; Dayton v. New Orleans, 12 La. An. 515; Cheany v. Hooser, 9 B. Monr. 336; Slack v. Maysville & Lex. Railroad, 13 id. 26; Nicol v. Mayor, 9 Humph. 265; Mayor v. State, 15 Md. 462; People v. Mahoney, 13 Mich. 500: Montpelier v. East Montpelier, 27 Vt. 704; Aspinwall VOL. II.-36

7. Commissioners Daviess Co., 22 How. 377; People v. Pinckney, 32 N. Y. 377.

2. The legislature has full control over the property and money of a city, and may direct its use for any purpose consistent with the public good, of which it is the judge. Cooley's Const. Lim. 235; Richland Co. v. Lawrence Co., 12 Ill. 1; Trustees v. Tatman, 13 id. 30; Greenleaf v. Trustees, 22 id. 236; Springfield v. Power, 25 id. 187; Dennis v. Maynard, 15 id. 477; The People v. Ottawa, 48 id. 233; East Hartford v. Hartford Bridge Co., 10 How. 532; Mayor v. State, 15 Md. 462; Montpelier v. East Montpelier, 27 Vt. 704; Same v. Same, 29 id. 19; State v. St. Louis, 34 Mo. 572; People v. Morris, 13 Wend. 395; People v. Batcheldor, 22 N. Y. 128. 3. The legislature may create a debt or create a tax without consent of corporate authorities. Cooley's Const. Lim. 231; Dennis v. Maynard, 15 Ill. 477; People v. Ottawa, 48 id. 233; Kirby v. Shaw, 19 Pa. St. 258; Sharpless v. Mayor, 21 id. 166; Burrough Dunmore's Appeal, 52 id. 374; Thomas v. Leland, 24 Wend. 67; Town of Guilford v. Chenange, 18 Barb. 615; Same v. Same, 3 Kern. 143; People v. Mitchell, 45 Barb. 208; S. C., 35 N. Y. 551; Mayor v. State, 15 Md. 462; Nicol v. Mayor, 9 Humph. 266; People v. Mahoney, 13 Mich. 500; Bank of Rome v. Rome, 18 N. Y. 39.

Storrs & Wilson and S. A. Irvin, for respondents:

To the point that the legislature could not compel municipal corporations to incur debt for local improvement against their will, cited Hampshire v. Franklin, 16 Mass. 87; Cheaney v. Hooser, 9 B. Monr. 338; Cooley's Const. Lim. 234, 235; 4 N. H. 566; Calder v. Bull, 3 Dall. 386; Wilkinson v. Leland, 2 Pet. 627.

BREESE, Ch. J. (after stating the facts). The alternative writ stands in the place of a declaration in an ordinary action of law, and must show a case prima facie good, and, as in ordinary cases, the demurrer brings before the court the whole merits of the controversy. The writ is only to be awarded in a case where the party applying for it shall show a clear right to have the thing sought by it done, and by the persons or body sought to be coerced. The People, etc. v. Hatch, 33 Ill. 9.

The important question presented by the demurrer arises upon the twelfth section of the act.

People v. The Mayor, etc., of Chicago.

The relators insist that it is within the constitutional competency of the general assembly to require the issue of these bonds, in the manner indicated in the act, upon the demand of the relators, and that it was not necessary to submit the question of creating such indebtedness to the municipal corporation of Chicago, or to the common council, or to the mayor and comptroller, and is the necessary result of the possession by the legislature of plenary power over municipal corporations, so fuil and so absolute as to obliterate them altogether should the public exigencies so demand.

The demurrants contend that the requirement of the twelfth section, compelling them to issue the bonds of the city to pay for the land to be taken for Lincoln Park, and to provide for its improvement, is nothing more or less than the imposition of a tax upon all the taxable property within the limits of the city, which the legislature, of itself, without the agency or consent of the city of Chicago, as a municipal corporation, has no constitutional power to impose. It is contended that it is in direct violation of section 5 of article 9 of the constitution of the state, which provides that the corporate authorities of counties, townships, school districts, cities, towns and villages, may be invested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. It is argued by the demurrants, that, by force of this provision, none but the corporate authorities of a city can be invested with the power of assessing and collecting taxes-that municipal taxes can only be assessed and collected for corporate purposes, and they must be uniform with respect to the persons and property within the municipal jurisdiction.

It is also claimed that the corporate authorities of a city are the legislative department of a city government, which department, by the charter of the city of Chicago, is composed of the mayor and two aldermen for each ward, elected by the voters of the several wards, and the argument is, that by this department alone can a tax be imposed for a corporate purpose.

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It is further contended, that this section of article 9 is an absolute limitation upon the exercise of the taxing power by the legislature; that it so limits the general powers of that body in relation to municipal taxation that all the legislature can do is to vest the power in the corporate authorities, to be exercised or not, as those authorities may deem expedient.

People v. The Mayor, etc., of Chicago.

We have read with great care the able arguments presented by counsel on both sides, and have examined the cases to which they refer as sustaining their propositions. We have not been furnished with the constitutional provisions of the several states before whose courts these determinations cited have been made, nor do we know wherein they resemble those of this state or differ from them. Some of the cases cited deny to the legislature the possession of the power to compel, against the will of a municipal corporation, its citizens to incur pecuniary obligations to be discharged by taxation, while other cases seem to hold that such corporations are so completely under legislative control that the legislature may compel them to do whatever it may permit them to do, having the general benefit in view.

We do not consider that it is necessary we should attempt to settle these conflicting opinions, as this case does not seem to require it. We are inclined to think, as a mere question of an exercise of the taxing power, it would be very difficult to sustain this law under section 5 of article 9 of the constitution.

In Harward v. The St. Clair & Monroe Levee & Drainage Company, a case submitted at the last January term, but in which no opinion has been agreed upon when this case was argued, we held this section was to be construed as a limitation upon the power of the legislature to delegate the right of corporate or local taxation to any other than the corporate authorities, and that by the phrase "corporate authorities" must be understood those municipal officers who are either directly elected by the people to be taxed, or appointed in some mode to which they have given their assent. To what extent it is to be construed as a limitation upon the power of local taxation directly by the legislature itself, it was not necessary in that case, nor is it in this, to decide. However strong the argument in favor of so construing it, there nevertheless may be cases where the legislature, without the consent of the corporate authorities, might impose taxes, local in their character, if required by the general good government of the state, because such taxes would not be merely and only for corporate purposes; as if one of the cities of the state should be insurgent, requiring the interposition of the military power, it will not be denied the state, on quelling the insurrection, could impose taxes upon the city to defray the expense of a resort to military power. So, if the police department of a city should fail to furnish reasonable security to life and property, the state,

People v. The Mayor, etc., of Chicago.

undoubtedly, might provide such force, and assess the city for the expense; but the tax authorized by the act in question is for a purpose purely local and corporate, having no other element about it, and the commissioners appointed by it are, in no sense, corporate authorities of the city of Chicago. They are a mere agency to accomplish the purpose specified in the act, and made to supersede the regularly constituted authorities of the city, to whom, by the charter of the city, had been committed the establishment, control and government of the parks of the city.

Not being a corporate authority of the city of Chicago, it cannot be said they are the authority contemplated by the fifth section of article nine of the constitution, in whom the legislature may vest the power of assessing and collecting taxes for corporate purposes. Although no express power is conferred, by this act, upon these commissioners to assess and collect taxes, yet, its equivalent - or what is worse and more oppressive - a power has been conferred upon them to impose a burden upon a small locality, and without its consent, of half a million of dollars, to remove which resort must be had to taxation, to continue for a series of years.

The relators have cited numerous cases as authority in support of the point they make, but they have failed to find a case wherein it has been held that the legislature can compel a city, against its will, to incur a debt by the issue of its bonds for a local improvement. While it is conceded that municipal corporations, which exist only for public purposes, are subject at all times to the control of the legislature creating them, and have, in their franchises, no vested right, and whose powers and privileges the creating power may alter, modify or abolish at pleasure, as they are but parts of the machinery employed to carry on the affairs of the state, over which, and their rights and effects, the state may exercise a general superintendence and control (Richland County v. Lawrence County, 12 Ill. 8; Trustees of Schools v. Tatman, 13 id. 30), we are not of opinion that power, such as it is, can be so used as to compel any one of our many cities to issue its bonds against its will, to erect a park or for any other improvement- to force it to create a debt of millionsin effect, to compel every property owner in the city to give his bond to pay a debt thus forced upon the city. It will hardly be contended, that the legislature can compel a holder of property ir Chicago to execute his individual bond as security for the payment of a debt so ordered to be contracted. A city is made up of indi