The City of Chicago v. Larned

Decision Date30 April 1864
Citation1864 WL 2981,34 Ill. 203
PartiesTHE CITY OF CHICAGOv.EDWIN C. LARNED et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

ERROR to Superior Court of Chicago.

The case is sufficiently stated in the opinion of the court.

Francis Adams, City Attorney, and Scammon, McCagg & Fuller, for plaintiffs in error.

Arrington & Dent and Barker & Tuley, for defendants in error.

[34 Ill. 267]

BREESE, J.

At the February term, 1864, of the superior court of the city of Chicago, the city collector filed his report, and applied for judgment upon a special assessment warrant, for curbing, filling and paving with Nicholson pavement, Wabash avenue, from Randolph street to Fourteenth street, against the delinquent owners for their several assessments. Various objections were made to the application by these delinquents, some of which the superior court allowed, and refused the application. The city excepted to this ruling of the court, and have brought the case here by writ of error, and assign the same as error.

We propose to examine but one question raised by the parties, and discussed here with great ability, as the decision upon that determines the whole controversy, and that is, Are the provisions of sec. 21 of chap. 7 of the revised charter of the city of Chicago, under which the assessment in question was made, in harmony with the provisions of sections two and five, article nine, and of section eleven, article thirteen of the constitution of this state?

That section of the charter provides, whenever any order is passed by the common council, for the filling, grading, leveling, paving, curbing, walling, graveling, macadamizing, planking or repairing of any street, lane, alley or highway, the commissioners of the board of public works shall forthwith proceed to assess the amount directed by the common council to be assessed on the real estate fronting or abutting on the contemplated improvement. Said assessment shall be made in such manner as nearly as may be, that each separate block, lot, sublot,

[34 Ill. 268]

piece or parcel of land, on either side of the street or part of the street to be improved, shall sustain the cost and expense of making or completing the improvement upon that half of the street directly adjacent to, or in front of the same.

Section 2 of article 9 of the state constitution declares that the general assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property.

Section five of the same article provides that the corporate authorities of counties, townships, school districts, cities, towns 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.

Section 11 of article 13 declares that no person's property shall be taken or applied to public use without the consent of his representatives in the general assembly, nor without just compensation being made to him.

The plaintiff in error takes the ground, that this section of the charter is an express and lawful grant of power to the authorities of the city of Chicago, in view of these constitutional provisions, to impose the cost of improving the streets in that city upon the adjacent property, in proportion to the foot front; that the legislature, both under the old and the present constitutions, has made similar grants of power to various other cities and towns; that these grants have never before been assailed as unconstitutional; that for more than twelve years this court has maintained the proposition that assessments for improving streets are not “taxes,” within the meaning of that word as used in section 5 of this article; that the same course of decision has prevailed in all the other states where this question has been raised, and that without regard to the manner in which the imposition was laid; that the authorities upon which the first case decided in this state is founded do not make any distinction as to the manner in which the tax is laid, in deciding whether or not it is a tax as that word is used in either state constitutions or general laws; and they argue that

[34 Ill. 269]

the true distinction between taxes and assessments lies in the objects for which they are laid, and not in the manner of apportioning them among those who are to bear the burden; that the construction of the law and the constitution contended for will give both full effect, and preserve their consistency with each other, while the contrary construction will disregard a legislative interpretation of the constitution continued for a long series of years; will overthrow similar provisions in a large number of town and city charters, and also sales of property for the nonpayment of such impositions; will overthrow all the previous decisions of this court, or place them on new and unlooked-for grounds, thereby causing great confusion, uncertainty and loss in the exercise of this class of corporate powers, and for the time, wholly suspend all street improvements in towns and cities organized under similar charters, and run counter to the course of authority on the same question in other states.

The defendants in error, on the other hand, insist that the impost is a tax for corporate purposes, and, not being “uniform,” is therefore, unconstitutional. That, if not a tax, it is an exercise of the right of eminent domain, and is unconstitutional, because it does not provide for “just compensation” to those whose money is taken, and, therefore, the assessment must be declared void under the constitution, whether considered as a tax or as an attempt to exercise eminent domain. They insist, that no one of the decisions of this court goes to the extent of deciding such assessments valid, and that only in states having constitutional provisions different from ours on this subject, and where the taxing power of the legislature is, in a great measure, unlimited, has this power been judicially upheld. The summary of their argument presents these points. The money attempted to be collected is claimed either under the taxing power, or in the exercise of eminent domain. If it be by taxation, it is for “corporate purposes,” or it is not, and if for corporate purposes, it is unconstitutional, because not uniform. If not for corporate purposes, it is unconstitutional, because corporate authority can only tax for corporate purposes;

[34 Ill. 270]

hence it follows, this money is not sought to be taken by taxation. If the money is taken by eminent domain, the method of ascertaining a just compensation must be provided by the act which directs the taking; but there is no method of ascertaining a just compensation provided in the charter, therefore, the money is not taken by eminent domain; hence it follows, the act of taking, and the proceedings to take it, are unconstitutional.

The plaintiffs in error insist, that this court has decided that a special assessment to defray the expenses of a particular local improvement, such as this in question, is not a tax. Reference is made to several cases which we will notice, and show the grounds on which this opinion was based.

The first case arose under the old charter of the city of Chicago, on a proceeding, on the part of the city, to widen an alley into a street which would include a portion of the property there situate, claimed by the canal trustees, and which was assessed for its proportion of the expenses of the improvement. The principal question made in that case was, whether the real estate belonging to the trustees of the Illinois and Michigan canal was liable to assessment of this character. The act of the legislature, granting these lands to the trustees provided, that they should be exempt from taxation of every description, by and under the laws of the state, until after they shall have been sold and conveyed by the trustees. It was contended that the assessment fell within this exemption. The court held, that the exemption must be regarded as applying only to taxes levied for state, county and municipal purposes. In other words, for purposes of revenue, to defray the expenses of such government, and conducting its operations. It was further held, that the assessment in question had none of the distinctive features of a tax; that it was imposed for a special purpose, and not for a general or public object. The courts say, the improvement is made for the convenience of a particular district; they further say, the property there situated is required to bear the expense in the proportion in which it is benefited, and that the assessment is precisely in the ratio

[34 Ill. 271]

of the advantages accruing to the property in consequence of the improvement. It is but an equivalent, a compensation, for the increased value the property derives from the opening of the street. Canal Trustees v. City of Chicago, 12 Ill., 406. This was not a case where the assessment was made upon the “frontage,” but upon the principle of burden and benefit in view of sec. 11 of art. 13. Compensation was made for the property taken, by the value added to the remainder from opening the street.

The case of Higgins v. The City of Chicago, 18 Id., 276, was an application for a mandamus to compel the city to collect and pay to the relator the damages which had been awarded him, consequent upon laying a street by the city, over a portion of his land within its limits. It was a proceeding in the exercise of the power of eminent domain, and had no connection with the taxing power.

The City of Chicago v. Colby, 20 Id., 614, merely reiterates the language of the court in 12 Id., 406, that a special assessment is not a tax.

In McBride v. The City of Chicago, 22 Id., 576, where the mode in which the city council had exercised the power conferred on it by its charter, to open, widen and extend streets, was considered, it...

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