| Ill. | Jun 15, 1851
This proceeding was instituted for the purpose of opening a street in the city of Chicago. Commissioners were appointed to report as to the necessity of the measure, and the value of the ground to be appropriated; and alsp to assess and apportion the expenses of the improvement, against the real estate to be benefited thereby. They reported in favor of opening the street, and included in their assessment of the expenses, the costs of the proceeding, amounting to $120. The report was approved. This Court held, in the case of Morris v. The City of Chicago, 11 Illinois, 650, that jt was error to include the costs of the proceeding in the assessment. For this error, the judgment must be reversed.
The case presents the question, whether the real estate belonging to the trustees of the Hlinois and Michigan Canal is liable to assessments of this character, and, as both parties are desirous that the question may be settled, I shall proceed briefly to state the conclusions of the Court on the subject. The 13th section of the act, by virtue of which the canal lands were granted to the trustees, declares, that “the said lands and lots shall be exempt from taxation of every description, by and under the laws of this State, until after the same shall have been sold and conveyed by the said trustees, as aforesaid.” It is contended, that the assessment in question, falls within this exemption. In 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 public object. It is an exaction made for the purpose of carrying on the government .directly, or through the medium of municipal corporations, which are but parts of the machinery employed in conducting the operations of the government. It is a charge on an estate that lessens its value. In the projjortion in which the owner is required to pay, is his pecuniary ability diminished. This is the sense in which the term taxation is used and understood. A reference to two or three adjudged cases will not be inappropriate. In the matter of the Mayor of New York, 11 Johnson, 77, an exemption in favor of churches from being “taxed by any law of the State,” was held to refer only to general taxes for the benefit of a town, comity, or the State at large, and not to extend to special assessments on the property of churches, for benefits resulting thereto by the opening, enlarging, or improving of streets. In Bleecker v. Ballou, 3 Wend., 263" date_filed="1829-08-15" court="N.Y. Sup. Ct." case_name="Bleecker v. Ballou">3 Wendell, 263, a covenant on the part of a lessee to pay “ all taxes” on the demised premises, was held not to embrace a special assessment for pitching and paving a street in front of the property. In the case of the Northern Liberties v. St. John’s church, 13 Penn. State Eep., 104, a general law exempting churches “from all and every county, road, city, and school tax,” was construed not to extend to an assessment for laying water pipes along the grounds of a church deemed to be benefited thereby. Those cases cannot be distinguished in principle from the one before us. The assessment in question has none of the distinctive features óf a tax. It is imposed for a special purpose, and not for a general or pmblic object. It is not a charge on the estate which reduces it in value. It substraéis nothing from the means or resources of the canal. The improvement is made for the convenience of a particular district, and the property there situated is required to bear the expense in the proportion in which it is benefited. The assessment is precisely in the ratio of the advantages, accruing to the property in consequence of the improvement. It is but an equivalent or compensation for the increased value the property derives from the opening of the street.
It is insisted, however, that the canal lands are to be regarded as the property of the state, and therefore exempt from the payment of the assessment. This position cannot be maintained. The state, for a valuable consideration, has granted these lands to the board of trustees. The latter are invested with the legal title to the lands, with the full power to alien and convey the same, and apply the proceeds to the payment of the loan of $1,600,000, made for the purpose of completing the canal, and, when that is discharged, in the extinguishment of the debts previously incurred in the construction of the canal. The State cannot now be considered as the owner of the lands. She cannot resume the grant, without the payment of the indebtedness, for which the canal and its resources stand pledged. Until this indebtedness is discharged, the property is beyond the control of the State. She has, indeed, a beneficial interest in the canal and canal property, and in its management by the trustees; and that interest may give her the right to insist that the trustees shall faithfully carry out the purposes of the trust. But her rights of property are subordinate to those of the trustees, and the subscribers to the loan.
The judgment is reversed, and the cause remanded.
Judgment reversed.