{ "id": 5288608, "name": "The City of Chicago v Edwin C. Larned et al.", "name_abbreviation": "City of Chicago v. 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Larned et al." ], "opinions": [ { "text": "Mr. Justice Breese\ndelivered the opinion of the Court:\nAt 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 \u00a1Nicholson 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.\nWe 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 %\nThat section of the charter provides, whenever any order is passed by the common council, for the filling, grading, leveling, paving, curbing, walling, graveling, macadamising, 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, sub-lot, 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.\nSection 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.\nSection 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.\nection 11 of article 13 declares that no person\u2019s 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.\nThe 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 varioiis 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 \u201c taxes,\u201d 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 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 non-payment 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.\nThe defendants in error, on the other hand, insist, that the impost is a tax for corporate purposes, and not being \u201c uniform,\u201d 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 \u201cjust compensation\u201d 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 ones 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 \u201c corporate purposes,\u201d 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; 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, on the proceedings to take it, are unconstitutional.\nThe 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. Eeference is made to several cases which we will notice, and show the grounds on which this opinion was based.\nThe 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 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.\nThis was not a case where the assessment was made upon the \u201c frontage,\u201d 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.\nThe 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.\nThe 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.\nIn 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 appeared that under the charter, as it then existed, the council were required to appoint commissioners to ascertain and assess the damage and recompense due the owners of lands affected by such improvements, and also to deter, mine what persons would be benefited by the improvement, and to assess the damages and expenses thereof, on the real estate of the persons benefited, as nearly as may be, to the benefits resulting to each. The court said, while au assessment of this character is not a tax, and differs in some respects from it, it is, nevertheless, in many respects, similar. They both proceed to raise money by authority of law from the citizen, without his assent, and are required to proceed upon the basis of equality, either as to benefits conferred, or in proportion to the ability of the person taxed. Uniformity and equality are, in each, observed, \u00e1s a principle of justice and duty.\nThe case of City of Peoria v. Kidder, 26 id. 351, decides that the city, under this charter, had the right to extend the street, to have the benefits and damages assessed, and the property in question was liable to the burden. It reiterates the doctrine of the other cases cited, that assessments of this character are not taxes, and, therefore, not embraced in, or regulated by, the provisions of the constitution on that subject. It is, in substance, there said, that when, in opening, widening or extending a street, it becomes necessary to appropriate private property to the purpose, the owner must have just compensation made to him, by the public at large, by the city, or by the persons deriving a pecuniary benefit from the improvement. This was a requirement of the 6th section of the charter of that city, which provided, that on award of damages by the commissioners to the owners of real estate, allowance should be made for any benefit which such owners might respectively derive from such improvement. The whole case shows an exercise of power under the right of eminent domain.\nThe case of The Town of Pleasant v. Kost, 29 id. 490, holds that an assessment of labor for the repairs of roads and streets is less like a tax than an assessment imposed for widening a street; that the right to impose labor for the repair of a public highway is not to be regulated by the limitation on the taxing power. The number of days levied, and the sum which may be received by commutation, must be uniform within the limits of the district or body imposing the same. All the cases decided by this court, so far as we have examined, hold that these special assessments are not taxes, for the reason, as plainly appears from the opinions delivered, that when laid in the ratio of benefits they are not burdens. It is that element which has reconciled this court to their imposition, and induced the court to range the power to make them, under the power of eminent domain, the \u201cjust compensation \u201d being the benefits flowing to the property holder from the improvement, and which are required to be estimated together with the damages. Ho case can be found, decided by this court, on a principle variant from this, the equation of benefit and burden forming the ground work of all of them.\nHow is it in other States ? The case of Garrett v. City of St. Louis, 25 Mo. 505, recognizes this principle of benefits. The court say that the tax in question is not a property tax within the meaning of the constitution. The tax is local, and for local purposes, and is a tax upon benefits and not directly upon property. The cost of the public benefit is made a-public burden, and the expense of the individual benefit is placed upon the shoulders of the person who receives it. The case of the Egyptian Levee Co. v. Hardin, 27 id. 495, decides that, notwithstanding the provision of the constitution which required property to be taxed according to its value, a direct tax of one dollar per annum upon land adjoining a proposed improvement, to defray the expenses of it, was valid. That clause does not apply to local assessments, when the money raised is to be expended on the property taxed.\nThe case of Weeks v. The City of Milwaukee, 10 Wis. 242, holds, that these assessments for building streets, side walks, &c., are an exercise of the taxing powers of the State, and that the rule of uniformity prescribed by the constitution extends to taxation by corporations, and that this uniformity implies equality in the burden, as held in Bank v. Hines, 3 Ohio, 15. This equality in the burden, constitutes the very substance designed to be secured by the rule. But the principle upon which these assessments rest, is clearly demonstrative of this equality. It requires every lot owner to build whatever improvements the public may require, on the street in front of his lot, without reference to inequalities in the value of the lots, in the expense of constructing the improvements, or to the question whether the lot is injured or benefited by their construction. In front of one lot, the expense of building the street may exceed the value of the lot, and its construction may impose on the owner additional expense to render his lot accesssible. In front of another lot, of even much greater value, the expense is comparatively slight. These inequalities are obvious, and the learned udge delivering the opinion, says he had always thought the principle of such assessments was radically wrong. The court held, however, that unsound as the principle might he, on which the power was based, yet the legislature had the power, under the constitution, to establish such a system. Was it not for the constitutional provision, or, if that was the same as ours, the court would have held the assessment void.\n. The case of Williams v. The Mayor, &c., of Detroit, 2 Mich. 566, presented the question discussed here, whether the money attempted to be raised by. means of an assessment to defray the expenses of improving a public street, is sought to be. taken by virtue of the right of eminent domain, or in the exercise of the sovereign power of taxation. The court decides that it is not in right of eminent domain, but was in the proper exercise of the powers of taxation, conferred by the charter on the common council of the city. That charter provides that the common council shall have full power and authority to provide funds for defraying the expenses of such paving of streets, or side walks, as may be deemed necessary, either by assessment on the owner or occupant of such lot, on premises in front of, or adjacent to, which such streets or side walks may be directed to be paved or repaired, or otherwise, as they may direct; and such assessment was, by an amendment to the charter, declared a lien on the lot in front of which the street or side walk may have been repaired or paved. The tax was sustained on the express ground that it was apportioned through a district.\nIn the case of The People ex rel. Griffin v. The Mayor of Brooklyn, 4 Comst. 419, the decision is placed expressly on the ground, that such assessments are lawful and constitutional taxation. The learned judge, delivering the opinion, says: \u201c\u25a0the assessment, therefore, was taxation and not an attempt to exercise the right of eminent domain. And 'if there be- any sound 1 objection to the assessment as a tax, it must be an objection which applies, to the principle on which the tax is apportioned, because, the object for which the money was to be raised is without dispute, one for which taxation, by a different rule of apportionment,, would have been lawful. He further says, that the power of taxation, and: of 'apportioning taxation, or of assigning to each individual his share of the burden, is vested exclusively in the legislature, unless this power is limited or restrained by some constitutional provision. He further says, there is not, and since the original organization of the State government, there has not been any such constitutional limitation or restraint.\nThe case of Brewster v. City of Syracuse, 19 N. Y. 116, proceeds on the same principle as the case in 4 Comstock.\nIn Schenley and wife v. The City of Alleghany, 25 Penn. 128, it is held that the act of assembly relating to the paving and grading of streets in the city of Alleghany, and the assessment of the expense of the same upon the owners of lots fronting on such streets, and the manner of collecting such assessments, are a proper and constitutional exercise of the taxing power by the legislature. The reason assigned is, that it imposes the burdens exactly where the benefits are conferred.\nThe case of Foster v. The Commissioners of Wood Country, 9 Ohio 540, simply decides that the levy of eight cents per acre on all lands within a given distance on each side of a certain turnpike road, is an assessment, and not a tax, and as such, authorized by the constitution as it contains the principle of benefit.\nIn neither of the States whose courts have made the decisions we have cited, can there be found the same constitutional provisions as is contained in sections two and five of the ninth article of our constitution.\nApplying, then, the test of our constitution to the principles established by these cases, we are unable to concur in them.\nThe framers of our constitution have taken unexampled pains by these separate sections to affirm the principles of \u201c equality \u201d and \u201c uniformity \u201d as indispensable to all legal taxation, whether general or local. Section five is believed to be peculiar to our constitution, and manifests the great anxiety of its framers to place every possible species of taxation upon the only equitable basis conceivable, and is believed to be more stringent than any provision in any other State constitution on the same subject.\nIf this assessment is to be regarded as an exercise of the taxing power, it cannot be denied that it flagrantly violates these principles of the constitution. To give an example : A and B may own, respectively, two lots lying side by side. The natural surface of A\u2019s lot may be twenty or more feet above the established grade, and composed of rocks unfit for building purposes. The natural surface of B\u2019s lot may be at grade. An order is passed by the common council to open and grade the street projected in front of these lots. It will cost B nothing, or the merest trifle. It will cost A all his lot will be worth after the street ise opened. To what does this amount but to a confiscation of A\u2019s lot for B\u2019s benefit, and that of others situated like !him ? Is it not absurd to call this equal and uniform taxation ? ^Regarded in the light of a tax, then, it is wholly indefensible.\nBut the plaintiffs in error hope to escape this conclusion under the guise that it is \u201c a special assessment,\u201d and not a tax. \u2022Call it a special assessment, then it is demanded on what ground, apart from the taxing power, can property be taken by way of a local or special assessment? As we understand it, the property of a citizen can be divested only in one of four ways: 1. For taxes; 2. For public uses by right of eminent domain; 3. As a penalty for disobedience to, or infraction of, some public law ; and, 4. To enforce payment of his debts.\nIf, then, a special assessment was not a tax, it must be placed, where the defendants in error place it, under the exercise of the power of eminent domain.\nThe first mode being ignored by this court as the basis of these assessments, they must of necessity be held to come under the right of eminent domain. They cannot be referred to any other constitutional provision. Power of every description must be referred to some certain source \u2014 some \u201c local habitation \u201d must be assigned to it, and if none can be, then it is safe to say it is \u201c vagrant power,\u201d or that it has no existence.\nHow can this right of eminent domain be exercised ? Only under the constitution, by making just compensation. Is such compensation made in this proceeding ? It has been decided by ithis court, in which this court, as at present composed, does not wholly concur, that this compensation may he either in money or benefits. It is solely on this ground that such assessments have been sustained by this and \"by other courts. From the case of the Canal Trustees v. The City of Chicago, 12 Ill. 406, to the present time, the ruling principle of all of them is, that as the assessments are in the ratio of advantages or benefits, they are lawful; that they are an equivalent for the increased value the property derives from the improvement. The court did not, in any of the cases, find it necessary to specify the clause in the constitution, under which the assessment was justifiable, but as they had already decided it was not a tax, and as they justified it on the ground of benefits, the conclusion is irresistible that they considered it an exercise of the power of eminent domain.\nIf, then, those special assessments must -be referred to this power, as they clearly must, if not a tax, they must be held to be invalid unless they make \u201cjust compensation \u201d in some mode, either by money or by benefits. There is no pretense in this proceeding of such compensation being in any way provided for or even contemplated. There is no assessment of special injury or special benefits to individual lots. In the case we have above put, the entire value of A\u2019s lot, even estimated after the improvement is made may be taken, and not ten dollars of B\u2019s. \"Where, then, is the benefit to A ? He has simply the satisfaction of having his lot confiscated by the public.\nIt is suggested in the argument of the corporation counsel (Mr. Adams) that the common council, in and by the act of ordering the improvement, \u201cmake an estimate that the benefits to the property assessed will be equal to the cost of the contemplated improvement.\u201d\nThe assessment of injuries and benefits is in the nature of a judicial proceeding, and must be surrounded with some sort of judicial sanction. Besides, the \u201cjust compensation\u201d required by the constitution is a matter of substance and not of form, and which this whole proceeding utterly ignores.\nIt is apparent to all who read it, that our constitution is very stringent in regard to equal taxation, whether general or local. Take away the assessment of injuries and benefits, then special assessments become the same thing in substance as taxes. This will not be denied. Why then should not the same principles apply ? But the constitution, while fixing the rule in regard to taxation, is silent in regard to special assessments. Why was this, since they were well known means, at the time of the adoption of the constitution, of local improvements ? Undoubtedly, it seems to us, because its framers regarded them as a proceeding under the right of eminent domain, and the property of the citizen as sufficiently protected under the clause requiring \u201cjust compensation.\u201d As already stated, this compensation may be made by \u201cbenefits,\u201d but, when these are exhausted, it then becomes a question of taxation, and the principles of equality and uniformity must apply.\nThe decisions of other courts, which were cited by plaintiff\u2019s counsel proceed, as we have said, upon their own constitutional provisions, and so far as they have application to this case under the peculiar provisions of section 5 of article 9, fortify the view we have endeavored to present. At any rate, even if we should seem to differ from them, we must construe our own constitution, and test the acts of all departments of the government, or other authority claiming to be based on its provisions, by it and by it alone.\nWe regard it as a very plain case, and the section of the charter in question as not in harmony with the sections of the constitution cited.\nWe have not commented on the cases cited by plaintiffs in error to be found in Mayor and Aldermen v. Mayberry, 6 Humph. 368, and Washington v. The Mayor and Aldermen of Nashville, 1 Swanst. 177, for the reason that both these cases are assigned, whether properly or not we do not say, to a power different from the taxing power. The ordinance called in question was an ordinance requiring each owner of a lot to construct a pavement in front of it, and in default thereof, directing the constable to construct the pavement, and to collect the cost of the same from the owners. This was held constitutional and valid, the court deciding that the ordinance did not levy a tax. It only required a duty to be performed for the well being and comfort of the citizens of the town, and was in the nature of a nuisance to be removed. The case in 1 Swanst. is based upon this case.\nOther points and authorities have been brought to our notice by the counsel on both sides, which we deem unnecessary to be particularly noticed, the point decided covering the one important ground of controversy. We consider that both the exercise of the right of eminent domain and the power of taxation are limited under our constitution, and the rule with us is deduced, not from general principles, but from the constitution itself, that there does not exist either in the legislature or in any of the subdivisions of State sovereignty a power of apportioning taxes, whether of a general or of a local character, except on the principle of equality and uniformity. It is manifest to us that our constitution established equality and uniformity to be the principle of taxation throughout the State in all its subdivisions of local government.\nThe power of taxation is a power of all others most liable to abuse. It was the object of the framers of our constitution to guard against that abuse, and while all the persons and property within the limits of a city, for which a local government is established, may be subjected to taxation by the delegated authority of such government for purposes of public utility within those limits, the principle of equality and uniformity required by the constitution must be preserved in the apportionment of such taxation, whatever be the objects on which the tax is to operate. Municipality No. 2 v. White, 9 La. Ann. 451.\nIt may then be asked, how can desirable improvements be lawfully made through the agency of special assessments ? It will be observed that see. 5, of art. 9, does not, in terms, authorize a special assessment for corporate purposes, but only to assess and collect taxes for such purposes. A corporate purpose being ascertained and determined on, by the city authorities, the principle should be adopted in order to carry it out, equally required by the constitution and demanded by the merest justice. Assess to each lot the special benefits it will derive from the improvement, charging such benefits upon the lots, and the residue of the costs be paid by equal and uniform taxation.\nWe omitted to notice in its proper place the proposition of the plaintiffs in error, that our constitution, not being a grant of power to the legislature, but a limitation of the law-making \u25a0power, is to be construed strictly in favor of the legislature. Besides the authorities cited on this point, this court, in the case of The People, &c., v. The Auditor, 30 Ill. 438, said, in a doubtful case the doubt is usually solved, and should be, in favor of the legislative power.\nAnother proposition is also stated by them, that it was competent for the legislature to establish this mode of providing means for improving the streets, unless that mode is prohibited by the constitution.\nThe general principle is doubtless true, that a State legislature may do any thing not inhibited by the constitution; but from this, their corollary does not necessarily follow, for the reason, although a particular mode of assessment may not be prohibited, yet, at the same time, the mode adopted must not be repugnant, to the general provisions of the constitution defining the taxing power, the purposes for which taxes may be assessed, and mode of levying them. The mode prescribed, whatever it may be, must be subject to the restrictions and limitations of the constitution. Clarke v. The City of Rochester, 24 Barb. 446.\nWe have examined with much care the case of Burnett v. The Mayor, &c., of the City of Sacramento, 12 Cal. 76, and also the case of Woodbridge v. The City of Detroit, 8 Mich. 274, which are much relied on by the plaintiffs in error. In the case' last named, the court was divided in opinion, two of the judges holding such assessments as we are considering, .to be authorized by the constitution of the State of Michigan, the other two holding they were not so authorized. There is no provision in the constitution of Michigan, like the fifth section of article nine of our constitution. \u201c Taxes for purely local public improvements, generally called assessments, are not mentioned in the constitution,\u201d says Mr. Justice Manning, and, therefore, \u201c the power to impose and collect such taxes, like all other legislative powers not mentioned in the constitution, is plenary, and in the exercise of it is subject to legislative discretion only.\u201d\nWhat would be a constitutional exercise of power on this subject, by the legislature of Michigan, might not be by our legislature, by reason of the difference in the provisions of their respective constitutions. The argument of Mr. Justice Maototg, with whom the chief justice concurred, adopts the reasoning of Mr. Justice Ruggles, 4 Comst. 419, and that is based on the absence of any clause in the constitution of \u00a1New York, limiting the power of the legislature over the subject.\nThe case in 12 California, was decided on the constitution of that State, which does not contain the provision ours contains, and seems to us, with all the other cases referred to by the counsel for the plaintiffs in error, to be based on wrong assumptions and unsound principles. They all proceed on the ground that these assessments are not the exercise of the taxing power, which provides for equality and uniformity in order to raise revenue for the support of the government, but is a power resting in the legislature, to be exercised according to their discretion; and that the improvements to be made by such assessments, are such improvements, in which the public is only to a limited extent interested, and therefore the burden of making them should be cast on the parties chiefly benefited in an increased value of their property.\nWe cannot understand how it is, that a law which places the burden upon the property adjacent to the improvement, is a more equitable apportionment than if imposed upon the entire property of the city, ward or district. Nor is it true, that the grading, paving, &c., of a street in Chicago, or other large and growing city, is a mere local improvement, the expense of which adjacent proprietors should wholly bear. It is a matter of public benefit, extending throughout the chartered limits of the city. Are not the owners of property on Wabash avenue and Halsted street, or on the most remote street in Chicago, and those residing thereon, benefited by the grading, paving, &e., of Lake, Randolph, or Dearborn, or Clark streets ? If so, should they not bear a fair proportion of the expense) to be assessed on the principle of valuation and uniformity, and of benefits ? It does not follow, as the case w\u00e9 have put shows, that the owner of an adjacent lot is benefited by an improvement, the cost of which amounts to the full value of his lot, and which may require an additional expenditure by him, to make his lot accessible. In these improvements, the whole public are interested, and that public should pay the cost, on the principle we have suggested; that is, assess to each lot the special benefits it will derive from the improvement, charging such benefits upon the lots, the residue of the cost to be paid by equal and uniform taxation. In this way, the demands of the constitution may be fulfilled, and injustice done to no one.\nEntertaining no doubt that this grant of power to the city council is against the fundamental law regulating the subject of taxation, we are compelled, by a sense of our own duty, so to declare, and to hold an assessment for improvements made on the basis of the frontage of the lots upon the street to be improved, invalid, as containing neither the element of equality nor uniformity if assessed under the taxing power; and if in exercise of the right of eminent domain, equally invalid, no compensation whatever being provided or even contemplated by the charter.\nThe Superior Court having entertained similar views, their judgment must be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Breese" } ], "attorneys": [ "Mr. Francis Adams, city attorney, for the plaintiffs in error.", "Mr. A. W. Arrington, for the defendants in error,", "Mr. Arrington also submitted the following argument:", "Messrs. Scammon, McCagg and Fuller for the plaintiffs in error, in reply:", "Messrs. Barker and Tuley, for the defendants in error," ], "corrections": "", "head_matter": "The City of Chicago v Edwin C. Larned et al.\n1. Taxation. The principles of \u201cequality\u201d and \u201cuniformity,\u201d are indispensable to all legal taxations, general or local.\n2. Special assessments. Apart from the exercise of the taxing powers, property cannot be taken to satisfy a special assessment, unless under the power of eminent domain.\n3. Eminent domain. The power of eminent domain can only be exercised under the constitution, by making .just compensation.\nA Same, and power op taxation. The exercise of the right of eminent domain, and the power of taxation, are limited under our constitution, and there exists no power in any department of the government, or in any of its subdivisions, to apportion taxes, whether of a general or local character, except on the principles of equality and uniformity.\n5. Public Improvements \u2014 assessments therefor. In public improvement's which concern the whole public, there should be assessed to each lot the special benefits it will derive from the improvement, charging such benefit on the lots, the residue of the cost to be paid by equal and uniform taxation.\n6. Same. An assessment for improvements made on the basis of the frontage of lots upon the street to be improved, is invalid, containing neither the element of equality nor uniformity, if assessed under the taxing powers, and equally invalid if in the exercise of the right of eminent domain, no compensation being provided.\nWrit of Error to the Superior Court of Chicago.\nThis was a writ of error to the Superior Court of Chicago, to bring up the record of a judgment upon a special assessment warrant for filling and paving, with \u201c Nicholson pavement,\u201d Wabash avenue, from Randolph street to Fourteenth street. The court sustained some of the objections made by the owners of the lots assessed, and gave judgment against the city for the costs.\nThe arguments by the counsel on both sides, and the opinion of the court, so fully present the questions as to, render a particular statement unnecessary.\nThe errors assigned are as follows:\nThe court erred in sustaining the objections filed by the said defendants to the application made by the collector for judgment against the several lots and parcels of land in said objections set forth.\nThe court erred in refusing to render judgment in favor of the city of Chicago against the several lots and parcels of land set forth in the objections filed by said defendants.\nThe judgment rendered by said court in favor of the said defendants, was contrary to the law and evidence, and should have been for the plaintiff.\nMr. Francis Adams, city attorney, for the plaintiffs in error.\nThe objections of defendants as to the unconstitutionality of section 21, chapter 1, of the charter, are necessarily based upon the premises that assessments of the character contemplated and authorized by this section, are taxes within the meaning of the foregoing constitutional provision. Unless, therefore, this proposition can be sustained, the objections are insufficient.\nIt has been decided by this court in the following cases, that a special assessment to defray the expenses of a particular local improvement, as the opening or improvement of a street in a city, is not a tax. The Canal Trustees v. The City of Chicago, 12 Ill. 403; The City of Chicago v. Colby, 20 id. 614; McBride v. The City of Chicago, 22 id. 514; City of Peoria v. Kidder, 26 id. 352; Town of Pleasant v. Kost, 29 id. 494.\nIn the case in 26 Ill. the court expressly decided that an assessment to defray the expense of opening a street, is not a tax, and is not embraced in or regulated by the constitutional provisions relative to taxes. The court say, id. 351, \u201cIt is1 the established doctrine of this court that assessments of this character are not taxes.\nIf assessments of the character authorized by section 21, chapter 7, of the charter, supra, are not taxes within the meaning of the constitutional provisions relative to taxation, it follows that the power of the legislature over the subject is plenary; because constitutional provisions, so fear as they relate to the power of a State legislature, are not grants, but limitations of power, and the rule is that such provisions must be strictly construed. The People, &c., v. Wilson, 15 Ill. 392; Prettyman v. The Supervisors, &c., 19 id. 411; Firemen's Benevolent Association v. Loundsberry, 21 id. 513-515. (The last is a very important ease as to the power of a State legislature.) People v. Field, 2 Scam. 95; Sawyer v. City of Alton, 3 id. 127; Mason v. Wait et al., 1 Gilm. 685; Fletcher v. Peck, 2 Pet. Cond. 317; Williams v. Mayor of Detroit et al., 2 Mich. 363, 364.\nBut it is contended by the defendants that the decisions of this court, which distinguish between special assessments and taxes, have no application in this case, and are not authorities for the constitutionality of this assessment, for the reason, as alleged by the defendants, that in all the assessments passed upon by this court, there has been an estimate of benefits and damages accruing from the improvements to the property assessed, and the assessments have been made in proportion to benefits; whereas, in this case, as they say, the charter makes no provision for, nor does it contemplate an assessment of benefits.\nIn answer to this objection:\n1. Chap. 7, sec. 1, clause 2, Rev. Charter, 67, empowers the common council to cause any street to be filled, curbed, paved, &c.\nSec. 2, chap. 7, provides that \u201c the expenses of any improvement mentioned in the foregoing section shall be defrayed, save as is herein otherwise provided, by a special assessment upon the real estate benefited thereby, to be levied in the manner hereinafter prescribed.\u201d\nSections 2 and 21, of chap. 7, relating to the same subject matter, must be construed together. It is a well settled rule of construction that \u201cone part of a statute must be so construed with another that the whole may, if possible stand, ut res magis valeat quampereat! 1 Blacks. Com. 89.\nA fair construction of sections 2 and 21, supra, would seem to be that when the improvement of a street is proposed, the common council are empowered by the charter to determine whether the property fronting or abutting upon the contemplated improvement will be benefited by the improvement to the amount requisite to defray the expenses of it, and if so to order it.\nIf this construction be correct, the common council\u2014a disinterested tribunal\u2014in every instance in which they order an improvement, make an estimate that the benefits to the property to be assessed will be equal to the cost of the contemplated improvement, and the passage by them of an ordinance directing the making of the improvement is conclusive as to their opinion.\nViewed in this light, this assessment is clearly within the purview of the decisions of this court, supra.\n2. This court has not distinguished between special assessments and taxes, as contended by defendants, solely upon the ground that in the assessment eases which have been before the court, benefits have been estimated, and property assessed, in proportion to the benefits derived from the improvements.\nIn the Canal Trustees et al. v. The City of Chicago, 12 Ill. 406, the assessment was made to defray the expense of opening a street in the city of Chicago. The grant to the trustees contained the following clause: \u201c The said lands and lots shall be exempt from taxation of every description by and under the laws of this State\u201d dee.\nPer Curiam: \u201cIn our opinion the exemption must be held to apply only to taxes levied for State, county and municipal purposes. . A tax is imposed for some general or pubic object, c&c. Again: \u201c The assessment in question has none of the distinctive features of a tax. It is imposed for a special purpose, and not for a general or public object.\u201d\nIt is apparent that the court held in this case that the assessment in question was not a tax, for the reason among others given in the opinion, that it was levied not for a municipal, general, or public, but for a special purpose.\nThe distinction made in this case between governmental and municipal purposes, and private and special purposes, is fully recognized and sustained by the Court of Appeals in New York, in Loyd v. Mayor, &c., of New York, 1 Seld. 374, (1851,) and by other decisions, post.\nThe decisions in 20, 22 and 26 Ill. cited, ante, do not proceed upon the distinction contended for by defendants in error.\nIn Pray v. The Northern Liberties, 31 Penn. 71, (1852,) which was an action to recover back money paid under protest on an assessment against the owner of a front lot for paving, &c., the court say :\n\u201c The assessment or charge for paving was not a tax, either technically speaking, or according to the purview of the acts of assembly on the subject. A tax is generally understood to mean the imposition of a duty or impost for the support of government. In that sense it is understood all the world over, as contradistinguished from a mere municipal be borne by the city,, and how much by indi viduals, and how much each owner is to hear, they act judicially and that \u201cit is a well settled principle, and laying at the foundation of the administration of justice, that no one is to be con demned in person or estate, without an opportunity of presenting his case, and that, too, under a statutory proceeding which is silent upon the question of notice.\u201d Citing, 2 Harr. 339; 2 Green, 520; 14 John. 538 ; 8 Vt. 389; 15 Wend. 374.\nIf the courts have in so many cases adjudged that where the statute was silent notice was required, can it be contended that where notice is necessarily implied, the court ought not to construe this section as requiring such notice to be given? Whether the board recommended the improvement of its own volition or not, the section says \u201c that in all cases the council may make such changes in the \u2018 proposed plan \u2019 i. e., in the plan recommended by the board, as may be petitioned for by the owners of property. How can they petition for a change, if they do not know of the existence of a \u2018proposed plan\u2019 ?\u201d\nIn all cases like this, to hold that no notice is required, would be to hold that no right to petition existed where the board recommended the doing of the work. The statute in such cases would confer no right, if the board can send in a recommendation, and the common council pass the ordinance without any notice of the proposed plan having been given, \u25a0either by the board or the council.\nIT. That no estimate of the expense of the improvement, as required by the city charter, was the council. Objection 8. reported by the board to\nThe estimate of the expense is as follows:\nCurb walls,...................... ......................... ...$15,036 12 ..... 6,712 09 Grading,........................... Nicholson pavement,.................... ... 76,469 27 Total estimate of expenses,............ Less cost of intersections,.............. ...$98,217 48 ... 17,127 11 Amount to be .assessed,.................. ...$81,090 37\nIn this class of improvement each property pays the cost and expense of the work for one-half of the street in front of his land; the estimate is designed to give the property holder information as to what the improvement will cost him, so that he may petition for any change, if he so desires it, and the estimate of sum total for whole work, as above, does not afford him any information as to what this improvement is to cost him. If the improvement was by the front foot, it might; but as some property must necessarily pay more in proportion to its front feet than other property, the estimate of sum total furnishes the property holder no information, whether the board have estimated the cost and expense of the work in front of his lot at three times too much or not; nor does it give any information as to what part of that sum total he will have to pay. The commissioners give notice that they will meet to make an assessment, and the property owner goes to the record of the common council or to the board to ascertain how far he is interested, and sees only this estimate, which gives him no information.\nIII. Eo sufficient assessment roll was filed in the clerk\u2019s office, nor any duplicate thereof with the board of public works, and said roll was not signed by the commissioners. Objection Eo. 16.\nThe ground of insufficiency is the want of the signatures of the commissioners to the assessment roll. The roll is made out, and then on the next page is a certificate of the commissioners as to what they have done, in which they refer to the foregoing assessment roll.\nSection 24, chapter 7, of city charter, requires that, when completed, the commissioners \u201c shall sign and return the same in like manner,\u201d as in section 13 is required; which last mentioned section requires the commissioners \u201c to sign and file the assessment roll in the office of the city clerk, and a duplicate thereof in the office of the board.\u201d\nEo certificate is required. They are to sign and return the roll. We think this point comes clearly within the decision in Chase v. Sparhawk, 2 Foster (N. H.).\nIn that case there was a list of taxes and a warrant, both on the same piece of paper. The signatures of the selectmen were to the warrant, and it was contended that the signatures to the warrant, which immediately followed the tax list, was a signing of the tax list.\nThe court: \u201c The mere official signatures and seals affixed to the warrant were not, in our opinion, a sighing of the list of taxes referred to in the same. They did not afford the sanction which the statute prescribes. They did not purport to be anything but the signing and sealing of the warrant alone.\u201d \u201c When the provisions of the statutes are plain in their terms, they should be strictly complied with.\u201d \u201c We think the reference to the list in the warrant cannot properly be regarded as affecting the list at all.\u201d \u201c It could neither render ,it valid or invalid.\u201d \u201c The warrant refers to the list as being a list already made, but it does not make it a list.\u201d\nThe signatures to this certificate do not purport to be a signing of the assessment-roll. The certificate is, that they have completed the assessment-roll, and the reference is to the foregoing assessment. A completed, a signed and finished assessment-roll, is referred to in the certificate, and not an unfinished one. The words are, \u201c in the foregoing assessment-roll mentioned,\u201d and that they further certify \u201c that the said assessment-roll embraces all the lots,\u201d &c. Chase v. Sparhawke, 2 Foster, 134; Sibley v. Smith, 2 Mich. 486; Foxcroft v. Nevins, 4 Greenl. 72; Taylor v. French, 19 Verm. 49.\nThe case of Sibley v. Smith is said by plaintiff to be of no validity. The court in that case hold \u201c the signatures are the evidence required by the statute of the completion of the roll by the assessors; of its being their official act; they are essential and component parts of a complete roll, without which an assessment-roll would have no more validity and effect than would a deed with a certificate of acknowledgment thereunder written, but the deed not executed.\u201d \u201c The certificate is no part of the assessment-roll.\u201d \u201c The certificate contains a history of a past transaction,\u201d and that the act requiring the certificate to be annexed to the assessment is merely directory, and that \u201c the entire want of a certificate \u201d would not invalidate the tax.\nIV. The ordinance for the improvement, and the notices, and all the proceedings, are not sufficiently definite and certain as to the street and part of street to be improved, and it is uncertain where said improvement begins and ends.\nIn this case the order and all the notices are that the street was to be paved \u201c from Eandolph to 14th street, produced eastwardlyThe commissioners are required in these notices to specify what the assessment is to be for. Is the end of 14th street, from which a line is to be produced eastwardly, one mile or five miles from Wabash avenue? Must a party obtain a survey to see if 14th street produced eastwardly would or would not throw his property between that produced eastwardly street and Eandolph street ?\nV. The objection in substance is, \u201cthat no notice was given by the commissioners who made the assessment of the filing of the assessment roll with the city clerk, and of their intended application to the common council for a confirmation of the same, as required by sections 24 and 13 of chapter I, city charter; and that, the notice being insufficient, the common council had no power to confirm the assessment.\u201d\nSection 13, which controls as to the notice, after providing for the filing of the assessment roll with the city clerk, provides, \u201cNotice shall be given by said commissioners, by six days\u2019 publication in the corporation newspaper, of the filing of such assessment roll in the clerk\u2019s office; and that, at the next regular meeting to be held after the expiration of such publication, they will apply to the common council for a confirmation of said assessment.\u201d\nThe notice which was given is as follows:\nASSESSMENT NOTICE.\nOffice of the Board of Public Works, 1 Chicago, October 11th, 1863. )\nPublic notice is hereby given to all persons interested, that the Board of Public Works of the City of Chicago has completed the assessment roll for the curbing, filling, and paving with Nicholson pavement, from Wabash avenue to Randolph street to Fourteenth street, produced eastwardly, and such assessment roll has been filed in the office of the city clerk. The board of public works will apply to the common council of said city, at its next regular meeting to be held on the 19th day of October, 1863, at the hour of 7i( o\u2019clock p. m., for a confirmation of such assessment, at which time all parties interested will have the right to be heard. All persons wishing to object to said assessment must file their objections to the same, in writing, in the office of the city clerk, at least one day prior to such meeting of the common council.\nJ. G. GINDELE,\nFRED. LETZ,\n\u00d3. J. ROSE,\nCommissioners of the Board of Public Works.\nWe contend that the notice is not such as required by the city charter, and that, therefore, the common council had no jurisdiction to confirm the assessment.\nIn the first place, the notice does not purport to be a notice of tbe commissioners, but of the board; and secondly, it does not state that the commissioners will apply, but that the board of public works will apply.\nThe board of public works and the commissioners to make an assessment are entirely different bodies.\nThe board are not required to act in the matter of special assessment except in the examination and recommendation of plans of improvement, and the charter does not design that after the order or ordinance for doing the work is passed by the council, the board shall have anything further to do with the assessment. Every subsequent section refers to and speaks of the commissioners, and although the commissioners of the board act in making assessments, they are clearly substituted for the special commissioners who were appointed in each case under the old charter. Sections 3 and 4 of chapter 7, of city charter, refer to, and mention, only the board, and in every subsequent section the commissioners are named.\nSection 14, chapter 1, provides that the commissioners, (except the mayor), except as afterwards provided, shall act as commissioners to malee special assessments.\nIn fact, the commissioners to make the assessment may, under the charter, be entirely different persons from the commissioners of the board; for see. 37, chap. 7, provides that if a commissioner of the board is interested he shall be disqualified from serving in that case, and that am/y vacancy thus created, or by absence, inability or refusal to serve, shall be filled by appointment by the mayor; and that such special commissioners shall receive two dollars per day.\nAfter sections 3 and 4, which define the duties of the board as to special assessments, sections 5, 6, 7, 8, 9,10,11, 12,13, 20, 21, 23, 24, relating to the proceedings in the condemnation of property and improvement of streets, specify the commissioners as the parties to act, and not the board, showing that the legislature intended that the connection of the board with the improvement ceased upon the passage of the ordinance for the doing the work.\nThe plaintiff contends, because in section 34 of chapter 7, the charter says, that \u201cin any case, if the first assessment prove insufficient, the board of public works shall make a second,\u201d that, therefore, the board of public works and the commissioners to make the assessment are one and the same. In order to make a second assessment, it would obviously be necessary for the board of public works to recommend it, and for the council to pass the order for its collection, and the board in that case would have just the same connection, and no other, with the second assessment that the charter contemplates the board shall have with a first assessment.\nThat the form of notice presented must be strictly pursued. Spear v. Ditty, 9 Vt. 282; Culver v. Hayden, 1 id. 364; Rex v. Mayor, 4 Burr. 2244.\nIn the case of Rex v. Croke, 1 Cowp. 29, an objection was made that the act required that the mayor, aldermen and commons, in common council assembled, should make application to the justices, and the record showed that the mayor, commonalty and citizens had made the application; the court sustained the objection, \u201c although, in fact, the latter includes the former.\u201d See note. Also, it is there decided \u201c the notice required by the act ought to have been fully set out and precisely pursued.\u201d\nVI. The next objection is, said assessment was not made on- all the real estate abutting on the improvement; and certain specified lots were not assessed, though they abut on the improvement, and certain other lots, not abutting on said improvement, are assessed.\nA sum of $81,090.37 was to be assessed by an ordinance of the council upon the property fronting or abutting on the improvement. It is admitted that this was not done; and the fact of its being a mistake cannot help the plaintiff. It was impossible, if the commissioners had assessed the property for the costs and expenses of doing the work immediately in front of it, that this mistake could have been made. If the assessment is good, having omitted six lots, the commissioners could go on and omit every alternate six lots along the whole improvement.\nVII. The last objection to which we desire to call the attention of the court is, \u201c that there is no sufficient record of any confirmation of said assessment roll by the common council.\u201d The only record that there is will be found p 76 of the abstract, and is as follows:\nRegular Meeting, October 10; 1863.\n\u201c The board of public works returned and asked for the confirmation of sundry assessment rolls, to which no objection's had been filed, for the following improvements:\n*\u25a0 * * * x x x ' * *\n\u201c For curbing, filling and paving with \u00a1Nicholson pavement, Wabash avenue, from Randolph street to Fourteenth street, produced eastwardly.\u201d\nxxxxxx xxx\nThe rolls were severally confirmed by the passage of the order of confirmation appended to each. Parol proof had to be introduced to identify the order which was appended to the assessment roll. If a loose sheet of paper containing an order can be called a record, then there was a sufficient record. \u201c A record of all proceedings \u201d of the council is required to be kept by the city charter, sec. 6, chap. 3. We do not think it necessary to examine the other objections, but believe that there are others not referred to above which should be held fatal to any application for judgment by the city collector in this proceeding." }, "file_name": "0203-01", "first_page_order": 203, "last_page_order": 282 }