In re City of Chicago

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Citation: 64 F. 897
• Parties: In re CITY OF CHICAGO.
• Decision Date: 17 May 1894

64 F. 897

In re CITY OF CHICAGO.

United States Circuit Court, N.D. Illinois.

May 17, 1894

Lockwood Honore, for city of Chicago.

Isham, Lincoln & Beale, for objector. [64 F. 898]

SEAMAN, District Judge (after stating the facts).

This motion to remand presents two important questions, namely: (1) Can the proceedings for this special assessment be held to constitute a 'suit,' within the meaning of the federal judiciary laws? (2) If so taken, is there a separable controversy, as required by the removal statute?

1. There have been frequent definitions by the supreme court of a 'suit' in the sense of these removal acts, applying it to all proceedings which are strictly judicial, and in which parties are litigating their rights. In Weston v. City of Charleston, 2 Pet. 449, the opinion, by Chief Justice Marshall, holds it applicable to a writ of prohibition, and says:

'The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but, if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.'

This definition has been frequently readopted, and made to reach writs of mandamus (Kendall v. U.S., 12 Pet. 524); habeas corpus (Holmes v. Jannison, 14 Pet. 540; Ex parte Milligan, 4 Wall. 2); proceedings for assessment of the value of land taken under the power of eminent domain (Kohl v. U.S., 91 U.S. 367; Boom Co. v. Patterson, 98 U.S. 403; Searl v. School Dist., 124 U.S. 197, 8 Sup.Ct. 460); and like proceedings for condemnation, which include assessment for benefits against other premises (Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113; City of Chicago v. Hutchinson, 11 Biss. 484, 15 F. 129).

In each of these cases the proceeding was judicial and adversary. Whether it was strictly judicial in the eminent domain cases was seriously considered, and finally so held, under the distinctions pointed out. In Boom Co. v. Patterson the view was urged before the court that the proceeding to take private property for public use is an exercise by the state of its sovereign right of eminent domain, with which the judiciary department, especially of the United States, had no right to interfere. The court answers:

'This position is undoubtedly a sound one so far as the act of appropriating the property is concerned. The right of eminent domain-- that is, the right to take private property for public use-- appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the constitutions of the several states providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. * * * But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the constitutions have been observed is a proper matter for judicial cognizance.'

The ascertainment of the amount of compensation, therefore, becomes a judicial inquiry when carried to a state court by an appeal from the award of commissioners.

The proceeding here under consideration is of another and different character,-- the machinery of taxation, also an attribute of sovereignty. It is an exercise by the city of Chicago of the power vested [64 F. 899] in it to construct a system of sewers, and assess a portion of the expense as benefits to such lots or tracts of land as are deemed benefited. The statute clearly confers the power. Formerly there was much discussion as to the constitutionality of such legislation, and whether the special assessments were laid as taxes, or in exercise of the power of eminent domain; but the constitutional validity is now well settled, and 'the courts are very generally agreed that the authority to require the property specially benefited to bear the expense of local improvements is a branch of the taxing power, or included within it.' 2 Dill.Mun.Corp. (3d Ed.) § 752; Cooley, Tax'n (2d Ed.) 623.

I take it, therefore, that this proceeding must be regarded as an exercise of the taxing power, and that any distinction between that and the exercise of the power of eminent domain may be important for answer to this first inquiry. It is stated in Cooley on Taxation (page 430) that the distinction is clear, and the text adopts the following definitions by Ruggles, J., in People v. Brooklyn, 4 N.Y. 419:

'Taxation exacts money or services from individuals as and for their respective shares of contribution to any public burden. Private property taken for any public use, by right of eminent domain, is taken, not as the owner's share of contribution to a public burden, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty, and creates no obligation to repay otherwise than in the proper application of the tax. Taxation operates upon the community, or upon a class of persons in a community, and by some rule of apportionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals.'

The power of taxation is legislative, and not judicial. Its...