White v. People ex rel. City of Bloomington

94 Ill. 604, 1880 Ill. LEXIS 142

• Court: Illinois Supreme Court
• Decided: May 17, 1880
• Status: Published

Opinions

Mr. Justice Sheldon

delivered the opinion of the Court:

On March 22, 1878, the city council of Bloomington adopted an ordinance for the building of a sidewalk touching upon the line of the south end of lot 44, in Mason’s addition to the city of Bloomington, requiring that it should be paid for by special taxation of the lots touching upon the line of the sidewalk by levying the whole cost thereof upon the lots touching upon the line of the sidewalk in proportion to their frontage upon the sidewalk. That such owners should build the sidewalk as prescribed, within thirty days after the publication of the ordinance, and that in default thereof the street commissioner should construct it and make return to the city clerk of the cost, together with a list of the lots touching upon the sidewalk, their frontage thereon, and the names of the owners,—whereupon the city clerk should'proceed to make a tax list against the lots and the owners, ascertaining«by computation the amount of special tax to be charged against each of the lots and the owners on account of the construction of the sidewalk, according to the frontage of each lot on the sidewalk; and the city clerk should thereupon issue his warrant to the special collector, who should proceed to collect the amount of the owner of the property, and in case of his failure to collect the amount he should make return to the county collector, and if not paid to the county collector, he should apply for judgment against the land as in case of other taxes.

John L. White, the owner of said lot 44, having failed to build the sidewalk in front of the premises as ordered, the sidewalk was constructed by the street commissioner at an expense of $11.54, and upon proceeding had in every respect in compliance with the ordinance, White, the owner, refused to pay the tax for the above amount, and application was made by the county collector to the county court for judgment against the land. White, the owner, appeared and filed the following objections to the application :

1. The ordinance is null and void.

2. The law (under which the ordinance was passed) is unconstitutional and void.

3. The assessment exceeds the benefits derived to the lot by said improvement.

4. The property is not specially benefited to the extent of the cost of the improvement.

5. The assessment is void as being made according to frontage.

To each of the objections a demurrer was interposed and sustained by the court, and judgment rendered in favor of the People, from which the objector, the owner of the lot, took this appeal.

The statute under which the ordinance in question was passed, enacts that in addition to the mode now authorized by law, any city or incorporated town or village may, by ordinance, provide for the construction of sidewalks therein, and may, by such ordinance, provide for the payment of the whole or any part of the cost thereof, “ by special taxation of the lot, lots or parcels of land touching upon the line where any such sidewalk is ordered, and such special taxation may be either by a levy on any lot of the whole or any part of the cost of making any such sidewalk in front of such lot or parcel of land, or by levying the whole or any part of the cost upon each of the lots or parcels of land touching upon the line of such sidewalk, pro rata, upon each of said lots or parcels, according to their respective values; * * * or the whole or any part of the cost thereof may be levied upon such lots or parcels of land in proportion to their frontage upon such sidewalks, or in proportion to their superficial area, as may be provided by the ordinance ordering the laying down of such sidewalk,”—the statute further providing particularly in detail upon the subject. Laws 1875, p. 63.

No question is made as to the ordinance being in pursuance of the statute, or as to the regularity, under the ordinance, of every step which has been taken in the proceeding. The real questions which are made, are whether the said sidewalk law is constitutional, and if so, whether the tax or assessment that may be levied under it is limited to actual benefits.

In The City of Chicago v. Larned, 34 Ill. 203, this court decided that an assessment for the grading and paving of a street made on the basis of the frontage of lots upon the street was invalid; and the same was decided in The City of Ottawa v. Spencer, 40 Ill. 211, with reference to an assessment for building a sidewalk on the basis of the exclusive liability of the owners of the adjacent lots for the cost of the improvement according to the frontage of the lots thereon.

Those decisions were made under the constitution of 1848, and in view of the provisions of sections 2 and 5, article 9 of that constitution, which were as follows :

Section 2 of article 9 of that constitution declared that the General Assembly should provide for levying a tax by valuation, so that every person and corporation should pay a tax in proportion to the value of his or her property.

Section 5 of the same article provided that the corporate authorities of counties, townships, school districts, cities, towns and villages, might 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.

It was held in those cases, that under these provisions of the constitution of 1848 there did not exist, either in the legislature or in the corporate authorities of cities and towns, a power of apportioning taxes, whether of a general or of a local character, except on the principle of equality and uniformity; that it was manifest that constitution established equality and uniformity to be the principle of taxation throughout the State in all its subdivisions of local government. It was held that the paving of a street or making a sidewalk were not mere local improvements, but were matters of public benefit, extending throughout the chartered limits of the city or town, in which the whole public were interested and should pay a proportion of the expense; and that the only valid mode, under the above constitutional provisions, of making such improvements through the agency of special assessments was to assess each lot the special benefits it would derive from the improvement, charging such benefits upon the lots, and the residue of the cost to be paid by equal and uniform taxation.

The many decisions of courts of other States sustaining statutes authorizing the assessment of the expense of such improvements upon the lots fronting on the improvement, as a proper and constitutional exercise of the taxing power by the legislature, were held not to apply, on the ground that in neither of such States could, there be found the same constitutional provisions as those above cited. It was said that section 5, requiring taxes for corporate purposes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same, was believed to be peculiar to that constitution of 1848, and to be more stringent than any other State constitution on the sanie subject.

But the questions in the present case arise under our constitution of 1870, Avhich is entirely different upon the point, on which our former decisions cited were made to depend, so that those decisions have little pertinency in the present case.

Section 1 of article 9 of the constitution of 1870 declares that “ the General Assembly shall provide such revenue as may be needful by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property.”

Section 9 of the same article provides that “ the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes,—but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the-same.”

Appellant, in claiming that this sidevralk law is unconstitutional, should point out the provision of the constitution that conflicts with the law. The only provision as so doing, to which his counsel have referred, is, “ that private property shall not be taken for public use without just compensation,—such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” Section 13, article 2. That limitation, we consider, has reference solely to the exercise of the power of eminent domain. The People v. Mayor, etc. 4 Comst. 419; Allen v. Drew, 44 Vt. 175; Warren v. Henley, 31 Iowa, 31.

It is quite clear that the levying such local assessments (for the building of sewers and sidewalks) is not taking private property for public use under the right of eminent domain, but is the exercise of the right of taxation, inherent in every sovereign State. (Per Redfield, J., in Allen v. Brew, supra.)

The courts seem to be very generally agreed, that the authority to require the property specially benefited to bear the expense of local improvement, is a branch of the taxing power, or included within it. 2 Dill. Mun. Corp. § 596. The compensation, under this provision, is to be ascertained by a jury.

As remarked in The People v. Mayor, etc., supra, “ This is an appropriate mode when lands or goods are taken, because their value is uncertain, but not when money is taken, because its value is already fixed.”

Not only is there in the constitution of 1870 the absence of any restriction of the mode of taxation here adopted, but there is express authorization of it in the fullest terms. It is, that the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. We do not see what broader authority than this is needed to justify an enactment whereby a town lot may be chargeable with the expense of the construction of a sidewalk in front of this lot. It is a special tax on property contiguous to the improvement. And the constitution says special taxes may be levied on property contiguous to the improvement. There is no limitation in respect of equality or uniformity, as in the constitution of 1848.

In the next following clause of section nine, “for all other corporate purposes,” etc., there is the limitation of uniformity; there, for all other corporate purposes the taxes shall be uniform in respect to persons and property within tlte jurisdiction of the body imposing the same. Thus drawing a sharp contrast in the two clauses between the making of local improvements and other corporate purposes—the first clause providing for making local improvements by special assessment, or by special taxation of contiguous property, or otherwise, unqualifiedly, without any limitation whatever— the second clause providing for taxation for other corporate purposes, but with the limitation that the taxes for other corporate purposes shall be uniform within the jurisdiction of the municipality. We find the phrase “special taxation” introduced for the first time in the' constitution of 1870. There is nothing there defining its meaning. If we may resort to former legislation of the State, as it is used there, for its meaning, we shall find it to embrace the precise kind of tax which is here in question. For instance, the charter of the city of Alton, Laws 1833, p. 208, sec. 6, contains this provision: “It shall be lawful for the board of trustees to levy and collect a special tax on the owners of lots on said street or parts of street, according to their respective fronts, for the purpose of grading and paving the sidewalks in said street.” The same provision occurs in various other municipal charters passed prior to the adoption of the constitution of 1870, the assessments authorized by them being denominated in the various acts special taxes, and to be levied in proportion to the frontage upon the improvement. Where a sidewalk required to be laid down extends, as in the present case, along the property of but one person, how can the cost be defrayed “by special taxation of contiguous property,” otherwise than by imposing the tax for the cost on the property in front of which the sidewalk is made ?

The provision that these local improvements may be made by special taxation of contiguous property, but that for all other corporate purposes taxation shall be uniform in respect to persons and property within the jurisdiction of the body imposing the tax, excludes all idea that for the making of such local improvements every person shall pay a tax in proportion to the value of his property, and that general requirement found in section one is modified by section nine, that the corporate authorities of cities, towns and villages may be vested with power to make local improvements by special taxation of contiguous property, or otherwise, and does not apply in such case. The whole constitution must be taken together.

Whether or not the special tax exceeds the actual benefit to the lot is not material. It may be supposed to be based on a presumed equivalent. The city council have determined the frontage to be the proper measure of probable benefits. That is generally considered as a very reasonable measure of benefits in the case of such an improvement, and if it does hot in fact, in the present case, represent the actual benefits, it is enough that the city council have deemed it the proper rule to apply.

In Allen v. Drew, supra, iu reference to such local improvements and assessments, Bedfield, J., observes: “ They are each, in degree, a general benefit to the public, and a special benefit to the local property. * * * * Such assessments are justified on the ground that the subject of the tax receives an equivalent. But'if the court should hold the assessment void because they adjudged the equivalent unequal, then no tax could stand, and government would cease,” and see Cooley on Taxation, 450. And on page 451 of the work last named, on the same subject, it is said: “In many instances * * * * the legislature has deemed it right and proper to take the line of frontage as the most practicable and reasonable measure of probable benefits, and making that the standard, to apportion the benefits accordingly. Such a measure of apportionment seems at first blush to be perfectly arbitrary, and likely to operate in some cases with great injustice, but it can not be denied that, in the case of some improvements, frontage is a very reasonable measure of benefits, much more just than value could be, and perhaps approaching equality as nearly as any estimate of benefits made by the judgment of men. However this may be, the authorities are well united in the conclusion that frontage may lawfully be made the basis of apportionment.”

And the same author, in his work on Constitutional Limitations, p. 507, remarks: “It has been held equally competent to make the street a taxing district and assess the expense of the improvement upon the lots in proportion to the frontage. Here, also, is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the legislature, it is the proper rule to apply to any particular case, the courts must enforce it.”

In Dillon on Mutt. Corp., sec. 596, it is said: “And the many cases which have been decided fully establish the general proposition that a charter or statute authorizing the municipal authorities to open or establish streets, or to make local improvements of the character above mentioned (sidewalks among them), and to assess the expense upon the property which, in the opinion of the designated tribunal or officers, shall be benefited by the improvement, in proportion to the amount of such benefit, or upon the abutters in proportion to benefits or frontage or superficial contents, is, in the absence of some special constitutional restriction, a valid exercise of the power of taxation. Whether the expense of making such improvements shall be paid out of the general treasury or be assessed upon the property benefited, or legislatively declared to be benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited or alone upon the abutters, according to frontage or according to the area of their lots, is, in all cases, a question of legislative expediency, unless there be some special restraining constitutional provision upon the subject. Whatever limitation there is upon the power of taxation (which includes the power of apportioning taxation) must be found in the nature of the power and in express constitutional provisions.” (See cases on the subject in various State courts collected in note.)

And that it is competent for the legislature to require the abutter to bear the whole expense of the improvement in front of his property, is laid down in sec. 597 of the same work, and in Warren v. Henley, 31 Ia. 31, and Weeks v. Milwaukee, 10 Wis. 258. And Cooley on Taxation, 453, 398, while expressing the contrary opinion in this last particular, with respect to local improvements in general, concedes that in sidewalk cases this latter mode for the construction of them has been held admissible, but that it has been justified as a regulation of police, and is not supported on the taxing power exclusively.

It is only in a special assessment proceeding proper, as known and adopted in this State since the Larned case, that regard is to be had to special benefits and an actual assessment of them alone to be made upon the property, and the residue of the cost to be paid by general taxation. And the objection that the special tax here exceeds the benefits to the lot, implies that the only mode of making the improvement is by special assessment; whereas, the broad power is given, under the constitution, to make it either by special assessment, or by special taxation of contiguous property, or otherwise. The objection leaves out of view, and treats as meaningless and of no avail, the words, “ by special taxation of contiguous property,” and “or otherwise,” which have with special care been inserted in the constitution of 1870. It also disregards that there is no requirement of uniformity of taxation for local improvements, while. there is for other corporate purposes. This proceeding is in the special taxation of contiguous property; and in the adoption of that mode there is no requirement of benefits received, and no respect thereto, further than may be had by the city council in determining upon which particular one of the several modes of special taxation of contiguous property open to them shall be resorted to. The condition is reversed now from what it was at the time the decision in the Lamed ease was made. It was there held that the decisions of other State courts on the subject were inapplicable, because of that peculiar restrictive provision in our constitution of 1848, before cited; but that restriction is left out of the constitution of 1870, and, instead, there is expressly granted the unrestricted power to cause these local improvements to be made by special assessment, or by special taxation of contiguous property, or otherwise. We may now say that we believe this provision makes our constitution of 1870 at least as liberal upon this subject as any other State constitution; and therefore, that the decisions of other courts of the Union, the great current of which are in support of the mode of such taxation on the basis of frontage, apply now with full force.

After the interpretation of the constitution of 1848 in the Larned case, the constitution was radically changed in the particular here involved, for the very purpose, we may suppose, of avoiding inconveniences which had been found to result from that decision.

The system of special assessments proper might answer in some of the large cities, Avhere it would not suit smaller towns. It might be too cumbersome and expensive for the latter. To have the formal procedure of a special assessment proceeding as known to our law gone through with, and a question of benefits be liable to be submitted to the decision of a jury every time a piece of sideAvalk was there to be laid down, would involve a labor, delay and expense which might be oppressively felt. Common experience and judgment teach us that sidewalks are a special benefit to the contiguous property, and it has ever, very generally, been considered as just and equitable that such property should pay the expense of them.

The framers of the constitution of 1870 thought it proper that the General Assembly should not be hampered in this respect, as they before had been, and so left out the former restrictive provision of uniformity in all municipal taxation, and adopted the broad provision that the General Assembly might vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. Thus, prescribing no rule whatever upon the subject, but placing the matter wholly under- the control of the General Assembly, that that body might, from time to time, enact such laws upon the subject as the interest of towns and cities throughout the State might require. The General Assembly have accordingly, by this sidewalk law, invested cities, towns and villages with power to tax contiguous property for the expense of constructing sidewalks, and have left it with them to determine, as they may think it just and equitable in the circumstances of any particular case, whether the former mode, by general taxation or by special assessment, should be pursued; or whether there should be special taxation of the contiguous property, either by a levy on the property of the cost of making the sidewalk in front of it, or by a levy of the tax in proportion to value, frontage or superficial area.

The grant of power by the General Assembly is explicit for pursuing the mode which has been adopted in the present case. The only inquiry, then, must be, whether there is any constitutional prohibition of the grant of the power. We find none.

The judgment of the court below is therefore affirmed.

Judgment affirmed.