County of McLean v. City of Bloomington

Mr. Justice Scholfleld delivered the opinion of the Court : This is an appeal from- a judgment rendered against the court house square of the county of McLean, in favor of the city of Bloomington, upon a special assessment for the improvement of adjacent streets. The objections urged may be included under three heads: First, the property is exempt from special assessments; second, the statute under which the city is proceeding does not authorize any assessment against property of the county; third, the judgment can not be enforced by sale of the property, and no other mode of enforcing the payment of such judgment can be resorted to. It is not claimed the first objection has the direct sanction of the statute in its support, but 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. Trustees et al. v. City of Chicago, 12 Ill. 403; Higgins v. City of Chicago, 18 id. 276; City of Chicago v. Colby, 20 id. 614; City of Peoria v. Kidder, 26 id. 352; Wright v. City of Chicago, 46 id. 44; Nix v. Post, 57 id. 121. The distinction between taxation and special assessment is, also, clearly made in our present constitution, (secs. 1-5, 9, art. 9,) and while providing that the General Assembly may exempt the property of the State, counties and other municipal corporations from the former, (section 3, supra,) makes no such provision in regard to the latter, but on the contrary, by section 9, supra, authorizes the General Assembly to “vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, ” without any restriction as to the property to be assessed. The second objection rests entirely upon the assumption that to include the property of counties it should be expressly named,—that language, however comprehensive, in general terms only, is not sufficient. The rule held by this court is directly the reverse of this assumption. The exemption, not the inclusion, must specifically appear. General language, like that under which the city is proceeding, includes the property of counties, cities, etc., as well as private property. Higgins v. City of Chicago, supra; Scammon v. City of Chicago, 42 Ill. 192; Cook County v. City of Chicago, 103 id. 646. There is not the slightest analogy between Fagan v. City of Chicago, 84 Ill. 227, and The People v. United States of America, 93 id. 30, cited by counsel for appellant. There the question related to the right of one sovereignty to invade another. The relation between cities and villages and counties is totally unlike that between the government of the State and the general government of the United States. Cities, villages and counties are mere agencies of the State, by and through which to conveniently administer local government. In the absence of express constitutional restraint the General Assembly might abolish them, one or all, and substitute other and .entirely different agencies in their stead. We have repeatedly held, that although the fee of streets is in the city, she has no private property in them, but holds them in trust for the use of the public,—not the citizens of the city alone, but the entire public, of which the legislature is the representative. (Chicago v. Rumsey, 87 Ill. 355; The People ex rel. v. Walsh et al. 96 id. 232; City of Chicago v. Union Building Association, 102 id. 379.) So here, instead of one sovereignty invading another, as in the cases referred to, we have the General Assembly simply authorizing that property held by one of its agencies shall be burdened with a charge for the benefit of another of its agencies to the extent it has been benefited by that agency, 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. The question relates purely to the right of the State to apportion a public burden upon public, in common with private, property, in proportion to the benefits conferred upon that property, and in nowise involves any questions of conflicting sovereignties. The remaining objection, we think, involves no serious difficulty, though, at first blush, it may seem to do so. We certainly do not hold the court house square may be sold and the title passed to private parties, or to the city. In Taylor v. The People ex rel. 66 Ill. 322, we held, explaining Scammon v. The City of Chicago, supra, that in such cases the amount should be paid out of the treasury. Should this not be done, mandamus would lie to compel it. (City of Olney v. Harvey, 50 Ill. 453.) And it seems that the judgment at law must precede the mandamus, the latter being in the nature of process of execution of the former. The People ex rel. v. Board of Supervisors, 50 Ill. 213. Finally, reference is made to Craw v. Village of Tolono, 96 Ill. 255, in which we held no personal charge can be enforced against the owner on account of a special assessment, but it must be collected from the property itself. It was not intended in that case to overrule Taylor v. The People ex rel. supra, and to hold that public property can and must be sold in such eases. Nor was it intended to overrule Higgins v. City of Chicago, and Scammon v. City of Chicago, supra, and hold that public property is not liable to special assessments, but it was simply intended to lay down a rule in regard to the special assessment of property of private owners. Undoubtedly, the principle will equally protect the public owner from being charged in this way more than the value of its property,—but as that is not claimed to have been done here, it is not necessary to discuss the mode by which to interpose such defence. Some objection is taken to the form of the judgment, but this we regard as of no moment. No execution can issue upon the judgment, nor can the court house square be sold by virtue of it. If it shall not be paid without coercion, that coercion must be by mandamus against those who properly represent the county, and are derelict in the performance of their duty in that regard. The judgment is affirmed. Judgment affirmed.