Illinois Cent. R. Co. v. City of Decatur

• Decision Date: 27 September 1888
• Citation: 126 Ill. 92,18 N.E. 315
• Parties: ILLINOIS CENT. R. CO. v. CITY OF DECATUR.
• Court: Illinois Supreme Court

126 Ill. 92

18 N.E. 315

ILLINOIS CENT. R. CO.

v.CITY OF DECATUR.

Supreme Court of Illinois.

September 27, 1888.

Appeal from Macon county court; WILLIAM. E. NELSON, Judge.

Appeal by the Illinois Central Railroad Company from an order of the county court confirming an assessment of a special tax upon the right of way of said company, for the purpose of paving East Wood street, in the city of Decatur. Const. Ill. 1870, art. 9, § 9, provides that ‘the general assembly may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise.’

Outten & Vail, for appellant.

I. R. Mills, for appellee.

MAGRUDER, J.

This is an appeal from a judgment of the county court of Macon county, confirming a special tax assessed by three commissioners for the purpose of paving East Wood street, in the city of Decatur, and charged against a portion of the right of way of the Illinois Central Railroad abutting upon said street, and contiguous thereto. Upon the return of the assessment roll appellant appeared in the county court, and filed objections, which were overruled. The city council of Decatur, on June 8, 1887, passed an ordinance for the paving of said street, which was declared to be a local improvement, and therein provided that the cost of paving the street and alley intersections and crossings should be paid out of the general taxes, and that the remainder of the cost of said improvement should be paid for by special taxation upon the lots, parts of lots, and parcels of land abutting upon said street, on both sides thereof, along the line of the improvement, in proportion to the frontage thereof upon the street. A committee of three persons was appointed by the ordinance to make an estimate of the cost of the improvement, and report the same to the council. On June 20, 1887, the committee made a report of the estimate of the cost of the improvement, exclusive of the cost of street and alley intersections and crossings, and also showing the cost of such street and alley intersections and crossings, which report was approved by the council on the same day. A petition was then filed in the county court, containing copies of the ordinance and of the report, and praying that commissioners be appointed, and that the cost of the improvement be levied and assessed, as provided in the ordinance, and as required by the law in such cases. The court, upon an examination of the petition, ordinance, and report, appointed three commissioners to make the levy and assessment for the improvement in the manner prescribed by the ordinance and by the law in such cases, and to make report as required by law. The commissioners so appointed to make the special tax levy reported to the court a special tax-roll, certifying to its correctness, and giving therein the names of the owners, the description of the lots or parcels of land abutting on the line of the improvement, the number of feet frontage thereof, and the amount of special tax levied against each of such lots or parcels of land. Due notice was given that the city council had applied to the county court for the levy and assessment of the cost of said improvement, except street and alley intersections and crossings, upon the abutting property, according to frontage; and that there would be a hearing of the assessment made and returned to court at the February term, 1888. Upon the hearing the objections to the assessment roll returned to the court were overruled, and the assessment as made and returned was confirmed.

The main objection made by the appellant company is that, by the terms of its charter, its property is exempt from the special tax thus imposed. By section 22 of the act incorporating the Illinois Central Railroad Company, approved February 10, 1851, it is provided that ‘the said corporation is hereby exempted from all taxation of every kind, except as herein provided for,’ etc. Sess. Laws 1851, p. 71; Hurd, Rev. St. 1885, p. 1043, or sections 305, 306, of revenue act. It has many times been held by this court ‘that exemption from taxation does not exempt from special assessments.’ County of McLean v. City of Bloomington, 106 Ill. 209, and cases there cited. Therefore, if the improvement in the present case had been made by special assessment, appellant's property would not be relieved by the exemption of its charter from its just proportion of the burden of such assessment. Is there any such difference between ‘special assessment’ and ‘special taxation’ of contiguous property, as those terms are used in section 9 of article 9 of our constitution, that the general word ‘taxation’ should be held to include the later, and not the former? It is the settled doctrine of this court that special assessments are not included within the meaning of the word ‘taxation.’ The question presented for our consideration is whether the same doctrine should also be applied to special taxation of contiguous property. The thirteenth section of the act by which the canal lands were granted to the trustees of the Illinois & Michigan Canal contains the following provision: ‘The said lands and lots shall be exempt from taxation of every description, by and under the laws of this state, until after the same shall have been sold and conveyed by the said trustees as aforesaid.’ In Trustees v. City of Chicago, 12 Ill. 403, the question was whether land belonging to the canal trustees was exempt under this thirteenth section from an assessment for opening a street...