207 Ill. 37 | Ill. | 1903
delivered the opinion of the court:
The city of Chicago sought to improve, by special assessment, California avenue, in said city, from Washington boulevard to a point 378.8 feet north of the north line of Fulton street, by curbing, grading, and-paving the same writh asphalt. The board of education of said city was the owner of ten lots abutting on the line of the improvement, and at the time of the application for a • confirmation of said special assessment against said lots, the board of education appeared in the county court of Cook county and objected to such confirmation, upon the ground that said property was in fact the property of the State of Illinois, and a confirmation of the assessment would, in fact, be a judgment against the State of Illinois; also for the further reason that said property was exempt from general taxation and from special assessment, and that said board had no funds out of which to pay such special assessment, and that the same could not be enforced by a sale of the land assessed. A hearing was had as to these objections upon an agreed state of facts, and the objections were each overruled and a judgment rendered confirming said assessment. From this judgment the board of education has appealed.
Upon the hearing in the county court it was agreed that of the ten pieces of property six were actually occupied by said board of education for school purposes. Two pieces were vacant and unoccupied, and from them the board received no rents and profits. The other two were occupied by buildings from which rents and profits were received, which were used for the benefit of the schools. It was also agreed that none of the lots were a part of section 1C, or acquired in any way from funds derived from that source.
Upon the hearing many propositions of law were submitted to the court, some of which were given and others refused. We do not deem it necessary to pass upon each of these propositions, because the decision of the case, stripped of all technicalities, involves the sole question whether or not the lots' assessed were subject to special assessment.
The right of taxation is essential to the very existence of the government, and all property, of every description, in the State, is subject to taxation unless it has been specifically exempted. All laws exempting property must be subjected by the courts to a strict construction, and hence nothing will be held to be within the exemption which does not clearly appear so to be. (People v. City of Chicago, 124 Ill. 636; In re Swigert, 119 id. 83.) In the case of People v. Trustees of Schools, 118 Ill. 52, we were called upon to determine whether school property being apart of section 16, or derived therefrom, was subject to special assessment, and we there held as follows: “By the sixth section of the act of Congress enabling the people of Illinois to form a State constitution, it was enacted that ‘the section numbered 16 in every township shall be granted to the State, for the use of the inhabitants of such township, for the use of schools.’ Article 8, section 2, of the constitution of 1870, provides that ‘all land, moneys or other property donated, granted or received for school, college, seminary or university purposes, and the proceeds thereof, shall be faithfully applied to the objects for which such gifts or grants were made,’”—and we there held that the property, being a part of section 16, was exempt from special assessment for local improvements. We have also held that there is a distinction between general taxation and special assessment, and that property which was exempt from general taxation was not necessarily exempt from special assessment. See Canal Trustees v. City of Chicago, 12 Ill. 403; Higgins v. City of Chicago, 18 id. 276; County of McLean v. City of Bloomington, 106 id. 209; County of Adams v. City of Quincy, 130 id. 566.
In the case of Bloomington Cemetery Ass. v. People, 139 Ill. 16, we held that a clause in a charter of a cemetery association that the ground held for a burial place shall be exempt from general taxation and execution will not protect the lands so held against a special assessment or a special tax for local improvements. In the case of County of McLean v. City of Bloomington, supra, we said with reference to a special assessment for paving the court house square (p. 213): “The contention is, such property is expressly exempt from taxation, and special assessments are included within the meaning of the word ‘taxation.’ We have been too long and too firmly committed to the doctrine that exemption from taxation does not exempt from special assessments to now admit that it is even debatable,”—citing the cases.
The distinction between taxation and special assessment is also clearly made in our present constitution. (Art. 9, secs. 1, 5, 9.) While providing that the General Assembly may exempt the property of the State, county and municipality from the former, section 3 makes no such provision in regard to the latter, but, on the contrary, by section 9 the General Assembly is authorized to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, without any restrictions as to the property to be assessed.
It is claimed, however, that this property is specially exempt under section 26 of article 4 of the constitution of 1870, and section 2 of article 8 of that constitution, and section 6 of article 12 of the act to establish and maintain a system of free schools. Section 26 of article 4 provides that the State shall not be a defendant in any suit. Section 2 of article 8 provides that all lands, moneys or other property donated, granted, or received for school, college, seminary or university purposes, and the proceeds thereof, shall be faithfully applied to the objects for which such gifts or grants were made. Section 6 of article 12 of the School law provides that the funds derived from the sale of section 16, “or from the sale of any real estate or other property taken on any judgement or for any debt due to the principal of any township or county fund, and all other funds of every other description,” are declared to be a part of the principal. of the township or county fund, and no such part shall be distributed or expended for any purpose whatever, but shall be loaned, etc., and that the rents, interest, issues and profits arising from said principal shall be distributed as provided by law, and that said rents and profits shall not be carried to the principal of the fund except it appear, on the first Monday in October, that there are rents or profits which are not required for distribution, etc... From a careful examination of these sections, and the construction placed upon them by the former decisions of this court, we do not think they specifically exempt the property in question in this case from special assessment.
It is contended, however, that this suit is, in fact, a suit against the State of Illinois, as the lands in question are the property of the people of the State of Illinois, and therefore this action cannot be maintained. We do not think this is a suit against the people of the State of Illinois, nor do the lands belong to the people of the State of Illinois. The title thereto is in the city of Chicago, in trust for the use of the schools in that city, and any interest which the people may have in the lots is confined to the people of the city of Chicago, rather than to the whole State of Illinois. Our statute expressly provides that boards of education may sue and be sued, and while it is contended that there is no such express provision with reference to the board of education of the city of Chicago, yet we think the power to sue and be sued may be implied from the act, and that the suit in question is in reality a suit against said board of education, rather than against the people of the State of Illinois.
It is also insisted by appellant that the payment of this special assessment out of the school funds would be a diverting of said funds from the object for which they were created. We do not see how that position can be maintained. A special assessment may be levied for the purpose of paving streets, putting down sidewalks, putting in curbing, or for sewer purposes, all of which are, in theory, for the benefit of the property abutting on the line of the improvement. Undeniably all of these improvements are of great benefit, if not of actual necessity, to a public school, and from the most of them no property derives more benefit than does that of the board of education. They are as necessary to the practical use of the property as the furnishing of heat, light and air. Special assessment for such improvements is but a method of applying the funds of the school district for the benefit of its schools, and is legal and proper.
It is also insisted that there is no method under the law by means of which the property in question can be sold to enforce the collection of this assessment. It may be conceded the property cannot be sold to pay the assessment, but there are other methods provided by law by which the payment can be enforced in case the board of education refuses to pay the same.
It has been suggested, though not seriously insisted upon, in the briefs and arguments, that at least those lots which are vacant and unoccupied should be held exempt. We are unable to find any legal ground for such a distinction.
Our conclusion is, that the county court ruled correctly on all the questions submitted to it, and its judgment will accordingly be affirmed.
Judgment affirmed.
