Chicago & N.W. Ry. Co. v. Vill. of Elmhurst

• Decision Date: 09 November 1896
• Citation: 165 Ill. 148,46 N.E. 437
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. VILLAGE OF ELMHURST.

165 Ill. 148

46 N.E. 437

CHICAGO & N. W. RY. CO.

v.VILLAGE OF ELMHURST.¹

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from Dupage county court; C. A. Bishop, Judge.

Petition by the village of Elmhurst against the Chicago & Northwestern Railway Company for confirmation of a special tax for street paving. From an order confirming the tax, defendant appeals. Affirmed.

L. W. Bowers and A. W. Pulver, for appellant.

F. J. Griffin and N. G. Moore, for appellee.

MAGRUDER, C. J.

This is an appeal from an order of the county court of Dupage county confirming a special tax levied against a certain right of way of the appellant under an ordinance of the village of Elmhurst for the paving of First street, which runs paralled with and alongside of said right of way in said village. The ordinance provides for the paving of First street from the west line of Addison street, which is east of appellant's depot, to the west boundary line of the village; and the original assessment roll described a strip of land belonging to appellant, running west from the west line of Addison street to the village limits. The special tax was levied upon the abutting property in proportion to frontage. Appellant's property, originally taxed in one parcel, abuts on the south side of the improvement. Upon motion of appellant, and against the objection and exception of appellee, the county court ordered the assessment roll to be recast, by dividing said strip of land into two parts, and levying the special tax separately on each part; the first part embracing the depot grounds, running from the west line of Addison street to the east line of Maple avenue, and the second part running from the east line of Maple avenue to the limits. After the assessment roll was recast, and the tax was divided, and a separate amount assessed upon each of the two parts, the roll was confirmed. The appellant made no objection to the assessment against the portion of the strip between Addison street and Maple avenue, which included the depot grounds, but filed objection to the tax as levied against the balance of the strip.

The objections made by the appellant may be ranged under three heads: First, that the ordinance is unreasonable and void; second, that the special tax cannot be enforced by a sale of the property taxed; and, third, that this special tax deprived appellant of its property without conpensation.

In support of the first objection, it is said that the property taxed is a railroad right of way, and that, as such, it is not subject to special taxation for this local improvement, because it is not benefited thereby. We have held over and over again that, under the statute in pursuance of which this tax was levied, the determination of the common council is final upon the question of benefit, and that the landowner ‘cannot go behind the action of the city council imposing the tax, and inquire what benefit, if any, the property owners receive on account of the improvement.’ Davis v. City of Litchfield, 155 Ill. 395, 40 N. E. 354; Railroad Co. v. City of Joliet, 153 Ill. 652, 39 N. E. 1077. The county court, in the present case, did, however, permit evidence to be introduced upon the question whether the strip of land belonging to appellant would be benefited or not by the paving of the street alongside of it. If it were proper to consider this evidence, it may be said that it tends to show that the land in question would be benefited by the improvement by reason of its nearness to the depot, and the crowded condition of the tracks running to the depot, where cars are loaded and unloaded, necessitating to some extent the unloading of freight from cars upon the right of way in question. It has been held that evidence bearing upon the questionwhether or not an ordinance is unreasonable is addressed to the court. City of Lake View v. Tate, 130 Ill. 247, 22 N. E. 791. But, in order to justify a court in interfering with the determination of the city council as to benefits, it must appear that the council has clearly abused the power and discretion conferred upon it. Lightner v. City of Peoria, 150 Ill. 87, 37 N. E. 69;Chicago & H. W. Ry. Co. v. Town of Cicero, 154 Ill. 658, 39 N. E. 574;City of Springfield v. Green, 120 Ill. 269, 11 N. E. 261. Ordinarily, such abuse of power and discretion must appear upon the face of the ordinance itself. Payne v. Village of South Springfield, 161 Ill. 293, 44 N. E. 105. If, however, it is allowable under any circumstances to look outside of the ordinance, we find nothing in the facts disclosed by the present record to show that there has been any such abuse as makes the present ordinance unreasonable. The right of way of a railroad company is subject to special taxation for a local improvement. Chicago & A. R. Co. v. City of Joliet, 153 Ill. 649, 39 N. E. 1077, and cases there cited; Chicago & N. W. Ry. Co. v. People, 120 Ill. 104, 11 N. E. 418; Payne v. Village of South Springfield, supra; Illinois Cent. R. Co. v. City of Mattoon, 141 Ill. 32, 30 N. E. 773;Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 509, 30 N. E. 1036;Kuehner v. City of Freeport, 143 Ill. 92, 32 N. E. 372;Rich v. City of Chicago, 152 Ill. 18, 38 N. E. 255;Illinois Cent. R. Co. v. Commissioners of East Lake Fork Special Drainage Dist., 129 Ill. 417, 21 N. E. 925;Drainage Com'rs of Dist. No. 3 v. Illinois Cent. R. Co., 158 Ill. 353, 41 N. E. 1073;Illinois Cent. R. Co. v. City of Decatur, 126 Ill. 92, 18 N. E. 315;Id., 147 U. S. 191, 13 Sup. Ct. 293;Id., 154 Ill. 173, 38 N. E. 626;Chicago, B. & Q. R. Co. v. City of Quincy, 136 Ill. 563, 27 N. E. 192; 25 Am. & Eng. Enc. Law, p. 259, and cases referred to in note 1.

The second objection made by appellant is that the special tax levied upon the portion of the right of way abutting upon the improvement can only be collected by the sale of such portion; and that a sale of a portion of the right of way cannot be made without breaking the continuity of the road, and destroying its entirety for the purposes of transportation. This is an argument against the validity of the special tax drawn from the supposed impracticability of the method necessary to be adopted for its collection. It would apply as well to the special tax if the improvement benefits the property to the full amount levied upon it as to the special tax where the improvement is of no benefit whatever. Some of the courts, in the reasoning which they adopt to sustain the view that a railroad's right of way should not be subjected to special taxation or special assessment for local improvements, refer to the risk of severing the road if such taxation or assessment is enforced against it. While it is held in this state that the railroad...