Hayward v. Peopl

• Decision Date: 03 April 1893
• Citation: 145 Ill. 55,33 N.E. 885
• Parties: HAYWARD v. PEOPLE.
• Court: Illinois Supreme Court

145 Ill. 55

33 N.E. 885

HAYWARD

v.PEOPLE.¹

Supreme Court of Illinois.

April 3, 1893.

Appeal from Christian county court; Vincent E. Foy, Judge.

Application for judgment for delinquent taxes. Judgment was rendered against the land of William E. Hayward, and he appeals. Affirmed.

J. C. Essick and Authony Thornton, for appellant.

E. A. Humphreys and J. C. McBride, for the People.

WILKIN, J.

This is an appeal from the judgment of the county court of Christian county against 86 acres of land off of the east side S. W. 1/4 of section 15, township 11 N., range 1 E., in said county, for municipal taxes, for the year 1891, of the city of Pana. Appellant having paid all other taxes, the city tax was returned, as approved by law, delinquent. The judgment for the tax was resisted upon the ground that by the special charter of the city of Pana, in force February 13, 1867, the property is exempt from taxation for municipal purposes. Section 1 of that act defines the boundaries of the city of Pana, and includes within the incorporate limits the tract in question. Section 2 of the act provides, among other things, that ‘all parcels of land within the aforesaid limits and boundaries, that exceed in extent ten acres, shall be exempted from taxation for city revenue until the same shall be subdivided into lots of ten acres, or less, and each lot, when so divided, shall be taxed as other city lots.’ The city of Pana became organized in the year 1876 under the ‘cities and villages' act of 1872, and has since been governed by the general law. It is stipulated that the boundaries of that city have been changed from those fixed by its special charter; that appellant paid taxes assessed for municipal purposes on his personal property for the years 1887, 1888, 1889, 1890, and 1891. No objection to the regularity of the tax is otherwise made.

Without pausing to determine whether the exemption contained in section 2 of the special charter was in violation of section 5, art. 9, of the constitution of 1848, which provided that ‘the corporate authorities of counties, towns, cities, and villages may be vested 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, and the general assembly shall require that all property within the limits of municipal corporations, belonging to individuals, shall be taxed for the payment of debts contracted under authority of law,’ we are of opinion that the land of appellant was subject to taxation for municipal purposes. However, see Trustees v. McConnel, 12 Ill. 138;O'Kane v. Treat, 25 Ill. 561;Hunsaker v. Wright, 30 Ill. 146;St. Louis Bridge Co. v. City of East St. Louis, 121 Ill. 246, 12 N. E. Rep. 723; Cooley, Tax'n, pp. 133, 134; City of Chicago v. Baptist Theological Union, 115 Ill. 245, 2 N. E. Rep. 254. Nor will a discussion of the power of the legislature to commute taxes to municipal or private corporations or persons be necessary. It is, however, uniformly held that, where the right to commute exists, it is in substitution for something else,-in place and lieu of the tax. Baltimore & O. R. Co. v. Maryland, 21 Wall. 456;Milwaukee, etc., R. Co. v. Supervisors, etc., 29 Wis. 116;Cooper v. Ash, 76 Ill. 12;Illinois Cent. R. Co. v. McLean Co., 17 Ill. 291;Board v. Campbell, 42 Ill. 492; and cases supra. And if the power to commute exists, the legislature is the sole judge of its propriety, and, its acts not being subject to revision by the co-ordinate powers of the state, it must be clear that commutation was intended. It will not be presumed that the legislature intended to create inequality in the assessment of persons or property within the municipality. It is said in Cooper v. Ash, supra: ‘Even if it were conceded, which it is not, that the legislature may commute county or local taxes for some other consideration in lieu thereof, such commutation should operate with fairness and uniformity upon the taxpayers of the corporation with which it should be made.’ And it was there said that what was attempted to be done in that case ‘can amount to no more than an attempt to commute with an individual, which we are clear was never contemplated by the framers of the constitution, and it is not within the legislative power.’ Without determining whether a commutation, which will assume the character of a contract between a private corporation or individual and the state, would be upheld, (Illinois Cent. R. Co. v. McLean Co., supra,) it is sufficient to say that here there was no attempt at commutation, but as in Trustees v. McConnel, supra, and O'Kane v. Treat, supra, there was simply an effort, unconditionally, to make an exemption from the payment of municipal taxes. Appellant paid nothing in lieu of, or substitution for, taxes upon his property. The payment of taxes upon his personal...