Mr. Justice Breese
delivered the opinion of the Court:
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, 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.
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.
ection 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 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 “ 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 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.
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 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 “ 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; 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.
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. Eeference 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 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 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, ás a principle of justice and duty.
The 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.
The 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 “just compensation ” 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.
How 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.
The 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.
. 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.
In 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: “■the 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.
The case of Brewster v. City of Syracuse, 19 N. Y. 116, proceeds on the same principle as the case in 4 Comstock.
In 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.
The 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.
In 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.
Applying, then, the test of our constitution to the principles established by these cases, we are unable to concur in them.
The framers of our constitution have taken unexampled pains by these separate sections to affirm the principles of “ equality ” and “ uniformity ” 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.
If 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’s lot may be twenty or more feet above the established grade, and composed of rocks unfit for building purposes. The natural surface of B’s 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’s lot for B’s 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.
But the plaintiffs in error hope to escape this conclusion under the guise that it is “ a special assessment,” and not a tax. •Call 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.
If, 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.
The 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 — some “ local habitation ” must be assigned to it, and if none can be, then it is safe to say it is “ vagrant power,” or that it has no existence.
How 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.
If, 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 “just compensation ” 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’s lot, even estimated after the improvement is made may be taken, and not ten dollars of B’s. "Where, then, is the benefit to A ? He has simply the satisfaction of having his lot confiscated by the public.
It is suggested in the argument of the corporation counsel (Mr. Adams) that the common council, in and by the act of ordering the improvement, “make an estimate that the benefits to the property assessed will be equal to the cost of the contemplated improvement.”
The 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 “just compensation” required by the constitution is a matter of substance and not of form, and which this whole proceeding utterly ignores.
It 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 “just compensation.” As already stated, this compensation may be made by “benefits,” but, when these are exhausted, it then becomes a question of taxation, and the principles of equality and uniformity must apply.
The decisions of other courts, which were cited by plaintiff’s 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.
We 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.
We 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.
Other 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.
The 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.
It 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.
We 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 ■power, 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.
Another 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.
The 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.
We 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. “ Taxes for purely local public improvements, generally called assessments, are not mentioned in the constitution,” says Mr. Justice Manning, and, therefore, “ 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.”
What 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 ¡New York, limiting the power of the legislature over the subject.
The 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.
We 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 wé 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.
Entertaining 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.
The Superior Court having entertained similar views, their judgment must be affirmed.
Judgment affirmed.