147 Ill. 359 | Ill. | 1893
delivered the opinion of the Court:
This is a proceeding by the City of Mount Vernon in the County Court of Jefferson County to confirm a special tax assessed, for the purpose of paving certain streets of the city, against the lots and blocks contiguous to or abutting upon the improvement. Among the blocks, so abutting upon the improvement, is the block owned by the State upon which the Supreme Court Building is located. This property was assessed a proportionate share of the cost of the improvement. The question, presented by the objections to the confirmation ■of the assessment, is, whether land owned by the State, and used by its Supreme Court for judicial purposes, is subject to special taxation for a local improvement by one of the cities ■of the State. The county court sustained the objection, that it had no jurisdiction so far as the property of the State was concerned, holding that said property was exempt from special taxation for the local improvement in question, and refusing to- confirm the assessment as to said property, or to enter judgment against the same. From such judgment of the •county court the present appeal is prosecuted.
Section 3 of article 9 of the constitution provides, that “the property of the State, counties, and other municipal corporations, both real and personal, * * * may be exempted from taxation; but such exemption shall be only by general law. ” In pursuance of this constitutional enactment, the legislature has provided, in section 2 of the general Revenue law, that “all property described in this section, to the extent herein limited, shall be exempt from taxation, that is to say— *' * * Fifth—All property of every kind belonging to the State of Illinois.” (2 Starr & Cur. Ann, Stat. page 2027). We have held that exemption from taxation does not exempt from special assessment or special taxation of contiguous property. (County of McLean v. City of Bloomington, 106 Ill. 209 ; I. C. R. R. Co. v. City of Decatur, 126 id. 92; County of Adams v. City of Quincy, 130 id. 666). It is, therefore, argued that, inasmuch as the general assembly, under the authority conferred upon it by section 9 of article 9 of the constitution, has, in. article 9 of the City and Village Act vested the corporate authorities of cities and villages with power to make local improvements by special assessment br special taxation of contiguous property, the property of the State may be assessed for paving a street under a city ordinance, which directs that the cost of such paving be paid by special taxation of contiguous property according to frontage.
What force there might be in this argument, if there were no other constitutional provision applicable to this subject than those above referred to, it is needless to discuss. But there is another provision of the 'constitution which, as it seems to us, is conclusive of the matter. Section 26 of article 4 of that instrument is as follows: “The State of Illinois shall never be made defendant in any court of law or equity.”
It- is claimed by the appellant, that the State is not a party defendant within the true meaning of section 26, upon the alleged ground that this is a proceeding in rem—an application to confirm a special tax directly upon, or against, real estate. It cannot be denied, that county courts are included in the expression: “any court Of law or equity.” The statute requires, that notice of the assessment shall be sent by mail to the owner of the property, and that notices shall be posted and published. Proof must be made of the mailing, posting and publication of such notices. The owner has a right to appear in response to the notice, and file objections to the report of the commissioners. A bearing is had, and evidence is introduced. (Chap. 24 of Rev. Stat. secs. 18 to 51). Although no judgment in personam is rendered against the owner, yet it cannot be said, that he is not a defendant, in view of the provisions made for his notification, appearance and contest, against the confirmation of the assessment. We think, that when the State is thus called into the county court to defend a proceeding against its property, it is made a defendant in the sense contemplated by the constitutional prohibition.
In support of the contention that the property of the State can be thus specially assessed, reference is made to cases where it has been held, that real estate owned by a city or county may be subjected to its. proper share of the burden of constructing public improvements. (Scammon v. City of Chicago, 42 Ill. 192; County of McLean v. City of Bloomington, supra; County of Adams v. City of Quincy, supra). But it is to be observed in regard to cities, villages and counties, that they are mere agencies of the State through which local government is conveniently administered, and that the general assembly may authorize property held by one of its agencies to be burdened with a charge for the benefit of another of its agencies to the extent of benefits received, “in regard to a matter in which the citizens and property owners within the territorial limits of such last named agency have no exclusive-interest, but only an interest in common with the entire public.” (Co. of McLean v. City of Bloomington, supra). Although the property of the city or county cannot be sold so as to pass the title thereto to private parties, yet mandamus will lie to compel the payment of the amount assessed out of the city or county treasury. (Taylor v. The People, 66 Ill. 322; City of Olney v. Harvey, 50 id. 453 ; The People v. Board of Supervisors, 50 id. 213 ; Co. of McLean v. City of Bloomington, supra). Here, however, it is conceded that the amount assessed can neither be recovered by a sale of the property of the State, nor by mandamus. The judgment in the assessment proceeding, if there was jurisdiction to render it, would be merely advisory. The tribunal pronouncing it would have no power to enforce it. Courts are not organized, under our judicial system, for the purpose of determining the moral obligations of the parties, but for the purpose of making such determinations as they have the authority to carry into execution.
“The State is a sovereign, and cannot be sued by her citizens, in her own courts, without her permission.” (State v. Inmel, 30 La. Ann.—part 2—861). “It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.” (Haus v. Louisiana, 134 U. S. 1). “The obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance, unless the State consents to be sued, or comes itself into court.” (Pennoyer v. McConnaughy, 140 U. S. 1). In Moore v. School Trustees, 19 Ill. 83, we said: “The State could not be made a party defendant, nor compelled to sue. Her sovereignty would protect her from being coerced to prosecute or defend. Osborn v. U. S. Bank, 9 Wheat. E. 728; Webster v. French, 11 Ill. 254.”
In Fagan v. City of Chicago, 84 Ill. 227, it was held, that the city of Chicago had no power to levy a special assessment for paving a street upon the block of ground owned by the U. S. Government and used, with the buildings thereon, for the purposes of a Post Office, custom-house, courts, etc. In that case we said: “A municipal corporation has no power to assess or exact from the State or the general government any sum for benefits conferred.”
In view of the considerations here presented we think, that the County Court properly refused to confirm the assessment as to the property in question. Accordingly, the judgment of that court is affirmed.
Judgment affirmed.
