Palmer v. City of Danville

Carter, J.: This writ of error is prosecuted to reverse the judgment of the county court of Vermilion county confirming a special tax levied to pay the cost of certain sewer and water service-pipes laid for house com nections with the sewer and water-mains in Main street, in the city of Danville. Numerous objections were filed and insisted on in the county court, and are renewed here by plaintiffs in error, but it will not be necessary to consider them all in the disposition of the case. It is urged in objection, among other things, that the several water and sewer service-pipes were intended for the use of the individual lot owners, and that the public could have no access to, use of or interest in them whatever, and that, therefore, they did not constitute a local improvement, within the meaning of the law. We do not regard this objection as well taken. All of the several water and sewer connections must be considered together as one entire work or improvement, and when taken in connection with the use of the mains which had already been provided, a local improvement especially useful and beneficial to the residents on the contiguous property, and generally useful and beneficial to the city, was provided for. At least the city council must have so regarded it in passing the ordinance, and we do not think there was any lack or abuse of power in the respect mentioned. Warren v. City of Chicago, 118 Ill. 329; Louisville and Nashville Railroad Co. v. City of East St. Louis, 134 id. 656; City of Chicago v. Blair, 149 id. 310, and cases cited. It is also urged, that as the water-main mentioned in the ordinance belonged to a private company, the city had no control over it except by virtue of the police power and by virtue of rights reserved in granting the license to lay the main in the street, and that such reserved rights did not include the right in the city to make water connections for private individuals as a local improvement. It was stipulated in the court below between the parties that the water-main is maintained, under the ordinances of the city, for the use of the city and its inhabitants, and the question is presented whether the mere fact that this main belongs to a private com-pony, though located in a public street and maintained for the use of the city and its inhabitants, under the provisions of an ordinance of the city, renders the ordinance and the proceedings under it in this case void. We do not think it does. The ordinance under which the water-main was laid and is maintained was not given in evidence, and we must presume, in the absence of any evidence to the contrary, that the city has preserved and guarded its own rights and those of its inhabitants in its contract with the water company. These water-pipe connections are a part of the entire improvement, and may be regarded as important in making the sewer and its connections more available and useful than they otherwise would be. In making this improvement so that it would be most useful and beneficial to the public and the property owners, the city had a large discretion, with the proper exercise of which the courts could not interfere. Lightner v. City of Peoria, 150 Ill. 80. It may be conceded that to make the water-pipe connections available or beneficial, it was the duty of the city council to provide water-mains to convey water to them, — in other words, to make provision for a supply of water, — otherwise the connections would be useless, and would not be an improvement at all, of benefit to any one. (Hutt v. City of Chicago, 132 Ill. 352.) This duty the city has discharged, and doubtless in the manner that seemed best for itself, the property owners interested and the inhabitants generally, and whether it should lay the mains and furnish the water itself, or hire a private person or corporation to do so, is a question for the city council to decide, and not for the courts. It might be that if the contract with the water company were in the record, and the court could see that its terms and provisions were such as to make the ordinance providing for this improvement oppressive and unjust in levying this tax to make connections with the water-main, which would never be of benefit to the contiguous property, this court would hold the ordinance invalid; but the record shows nothing more on this subject than that the water company owning the main maintains it, under ordinances giving it such right, for the use of the city and the inhabitants. In Holmes v. Village of Hyde Park, 121 Ill. 128, followed by Hunerberg v. Village of Hyde Park, 130 id. 156, and Leman v. City of Lake View, 181 id. 388, it was decided that the owner of property specially assessed for the purpose of improving a street cannot be heard to urge as an objection to the assessment that the proposed street is located on private property and that the city has not acquired title thereto, and it was held that the assessment may be levied before the title to the proposed street has been acquired, by condemnation or otherwise. In Leman v. City of Lake View, supra, (p. 391,) this court said: “The corporate authorities of cities and villages may levy special assessments for the improvement of a proposed street before acquiring title to the soil, by condemnation or otherwise, and may afterward take the necessary steps to condemn the land and have the compensation and damages to be paid assessed, and that the owner of the property specially assessed for grading and paving such street cannot interpose the objection to the confirmation of such assessment that the city or village had not acquired title to the soil to be graded and paved.” (See, also, Village of Hyde Park v. Borden, 94 Ill. 26.) These cases, though not precisely in point, lend force, by analogy, to the views here expressed. It is next objected that the special tax was not “levied by any rate of equality upon the real estate situated on the said Main street by or in proportion to frontage, value, area or otherwise, but has been unequally and unjustly levied.” Also, that the city had no power to levy the special tax to pay for said improvement, under article 9 of the act of 1872. . The record shows that the street was fifty-four feet wide between the curbing; that the street railway track occupied the center; that the sewer-main was laid along the south side, about ten feet from the curb, and the water-main along the north side of the street. These house connection-pipes extended from the respective mains each way across the street to the curbing, and no further, so that upon the south side of the street the sewer service-pipes were ten feet and the water service-pipes forty-two feet long, while on the north side the sewer-pipes were forty-four feet and the water-pipes fourteen feet long. The cost of putting in these sewer and water connections on the south side of the street, and of assessing and collecting the tax therefor and for which the assessment was confirmed, was $30.52 for each house or lot, while on the north side the amount was $50.07, so that a lot on the north side of the street, having the same frontage, area, value, and receiving the same benefits from the improvement as a lot on the south side, was assessed a much larger amount. This was done in accordance with the provisions of the ordinance, and the question is directly presented whether the city had the power to assess the cost of each lateral service-pipe against the lot with which it was intended to connect, instead of apportioning the entire cost of the improvement among the several lots and parcels of land contiguous to or abutting upon the improvement, upon some principle or rule of equality, such as the frontage, area or value of the respective lots. ■Counsel for the city says that “this assessment was made upon each lot with reference only to the cost of the pipe leading thereto; each lot was assessed for its special connection, and the committee’s estimate was made on that basis ;” that “while the improvement was a general one in one sense, in another it was several as to each lot;” and insists that it would be unjust and unequal to require the property owner on the south side of the street, requiring only ten feet of pipe to connect with the sewer, to pay as much for this local improvement as the lot owner on the north side of the street, requiring forty-four feet of pipe to connect his lot with the sewer. It will be noticed that the ordinance provides that the special tax is to be levied and collected in accordance with article 9 of the act of 1872, which vests the corporate authorities of cities and villages “with power to make local improvements by special assessment or by special taxation, or both,, of contiguous property, or general taxation, or otherwise, as they shall, by ordinance, prescribe.” This ordinance prescribed' that this improvement should be made by special taxation, and directed that a special tax be assessed upon the respective tracts or pieces of land for.which the service.-pipes were to be respectively provided, and which abut upon such service-pipes, equal to the cost of furnishing and laying the same. The power conferred to levy this special tax is referable to the power of taxation, and must be strictly construed. By the ordinance the city created a district, composed of the property contiguous to the improvement, for the purpose of levying the special tax to make the improvement. (Cooley on Taxation, 143, 151, 152; Lightner v. City of Peoria, 150 Ill. 80; Davis v. City of Litchfield, 145 id. 313.) The power to levy special assessments or special taxation on property contiguous or adjacent to the improvement, to pay for its construction, rests on the benefits which it is considered will inure to such property by the making of the improvement. (City of Bloomington v. Chicago and Alton Railroad Co. 134 Ill. 451, and cases cited; Louisville and Nashville Railroad Co. v. City of East St. Louis, id. 656; Kuehner et al. v. City of Freeport, 143 id. 92; Davis v. City of Litchfield, 145 id. 313.) So clearly is this founded on just legal principles, and so generally understood, that these assessments or taxes are often called “benefits.” In the levy of special taxes to make local improvements under article 9' of our statute, while the question of benefits is one that must be addressed to the city council, and the decision of the council is not generally open to review by the courts, but is final, yet it is clear, both upon principle and authority, that for unreasonableness, arbitrary abuse of power, or violation of the fundamental principles upon which the power of taxation rests, the validity of such an ordinance, as well as all proceedings under it, may be attacked in and passed upon by the courts. (Cooley on Taxation, 619, 622, and cases cited; Craw et al. v. Village of Tolono, 96 Ill. 255; City of Bloomington v. Chicago and Alton Railroad Co. 134 id. 451; Louisville and Nashville Railroad Co. v. City of East St. Louis, id. 656; Davis et al. v. City of Litchfield, 145 id. 313.) In the case last cited an' ordinance of the city of Litchfield was by this court declared invalid where it provided that the cost of the improvement — the paving of a street— should be apportioned and assessed against the abutting property according to frontage, but the assessment against each lot was to be “only to the amount of the cost of the improvement in front of any such lot.” It was there said that the ordinance had the effect of creating a taxing district, composed of the property contiguous to the improvement, and that assessing each lot with the cost of paving the street in front of it was “not the imposition of a special tax upon contiguous property,' but is an arbitrary imposition of the burden upon each lot of making the improvement in front'of it,” and that “it is of the essence of a tax that it shall be levied for a public purpose, and shall be uniform in respect of persons and property within the taxing district, whether that be the State, county, municipality or district thereof created for local improvement, and that it be laid according to some fixed rule of apportionment,” and that “equality of the burden is of the very essence of the right.” (See also 1 Desty on Taxation, 29; Dillon on Mun. Corp. 587.) “The district having been established by ordinance, the tax is to be imposed upon some rule of apportionment, which shall, in theory at least, conform to and be productive of uniformity in its levy.” (Davis v. Litchfield, supra.) The ordinance, and proceedings under it, involved in the case at bar, contain the same vice for which the ordinance in the Litchfield case was declared void. Should it be said that there was equality and uniformity in the levy of the tax as to property situated on the same side of the street, and that it would be unjust to make those situated nearer the sewer contribute to the expense of the connections of those situated on the other side of the street and farther away, it is a sufficient answer to say that the ordinance required the cost of connecting each lot to be assessed against such lot, and the mere circumstance that the location of the main sewer was such that it required less expense to make the connections on one side than on the other, could not be urged as a sufficient reason for violating the rule of equality and uniformity which should have been observed. Nor would there be any injustice in assessing the lots on the south at the same rate as on the north side, for, as we have seen, the levy of the tax must have been based on the benefits accruing to the property from the making of the improvement, and while the question of benefits was one for the city council to decide, it could not arbitrarily decide and ordain, in the same ordinance, that the property on the south side of the street was benefited in a greater degree by these lateral service-pipes than the property on the north side, simply because the main sewer was laid on the south side. Nor did the ordinance so declare. It provided for levying the cost on each lot of putting in the service-pipe connecting it with the sewer and water-mains, without regard to the proximity of the lot to the main and without regard to the length of pipe required to make the connection. If, for any reason, such as the length of the pipe, obstructions in the way of placing it, or other cause, one of these service-pipe connections cost more than another, the assessment must, under the ordinance, have been made accordingly. The contention of defendant in error in support of the judgment, based on the alleged injustice of requiring the lot owner who needed only ten feet of pipe to connect his lot with the sewer to contribute to the cost of his opposite neighbor’s connection which required forty-four feet, is an argument against the policy of constructing such an improvement by special taxation. In Holt et al. v. City of East St. Louis, 150 Ill. 530, this court said : “The object of special taxation is not to have each lot pay for the actual cost of what is done in front of it, but its proportionate share of the whole.” Judge Cooley, in his work on Taxation, (p. 646,) in speaking of the method of requiring each lot to pay for the improvement in front of it, says: “Instead .of establishing a taxing district, and apportioning the cost throughout it by some standard of benefit, actual or presumptive, the case of each individual lot fronting on the improvement has been taken by itself, and that lot has been assessed with the cost of the improvement along its front, or perhaps with one-half the cost, leaving the opposite lot to be assessed for the other half. If such a regulation constitutes the apportionment of a tax, it must be supported, when properly ordered by or under the authority of the legislature. But it has been denied, on what seems the most conclusive grounds, that this is permissible. It is not legitimate taxation, because it is lacking in one of its indispensable elements. It considers each lot by itself, compelling each to bear the burden of the improvement in front of it, without reference to any contribution to be made to the improvement by any other property, and it is, consequently, without any apportionment. Prom accidental circumstances the major part of the cost of an important public work may be expended in front of a single lot, those circumstances not at all contributing to make the improvement more valuable to the lot thus specially burdened, perhaps even having the opposite consequence. But whatever might be the result in particular cases, the fatal vice in the system is, that it provides for no taxing districts whatever. * * * In sidewalk cases a regulation of the kind has been held admissible, but it has been justified as a regulation of police, and is not supported on the taxing power exclusively.” He further says that such levies are not taxes, but forced contributions, and that a local tax for a local benefit should be distributed among find imposed upon all equally standing in a like relation. In the view we take of this case the decision must be the same whether the principal question at issue involves a lack of municipal power or an abuse of power conferred. The city council could not provide for the construction of this improvement by special taxation, and then ignore the very principle on which such taxation is based. The work must be regarded as an entirety, and its cost apportioned and assessed, on some principle of equality and uniformity, on all of the contiguous property — that is, on all the lots and parcels of land in the taxing district. St. John v. City of East St. Louis, 136 Ill. 207, and cases cited. But it is urged that the general law for the incorporation of cities and villages confers power on the city “to construct and keep in repair culverts, drains, sewers and cesspools, and to regulate the use thereof,” and in addition, that the city has general police powers, which enable it to do all acts necessary for the preservation and maintenance of the public health. These general powers cannot, however, be carried into effect by means of special taxation. In City of Chicago v. Law et al. 144 Ill. 569, it was held the city had no power to raise money, by special assessment, to enable it to carry into effect its general powers enumerated in the municipal code, and that the power of taxation by special assessment cannot be exercised by a city unless it has been expressly conferred by the legislature. Ho one will, we presume, contend that the legislature has conferred authority on the city to enforce its general police powers by special taxation or by special assessment. If it be said that the city may compel the lot owner, at his own expense, to construct sidewalks in front of his premises, and thus a local improvement may be constructed, and the cost so apportioned that each property owner must pay for the sidewalk in front of his lot, the reply is, that express authority is by statute conferred on cities and villages to cause sidewalks to be so constructed. (1 Starr & Cur. 541, 542.) We have not been referred to any provision of the statute, and we know of none,' vesting power in cities or villages to cause sewers to be laid or constructed, and the cost of constructing the same in front of each lot arbitrarily imposed on such lot or its owner, without regard to frontage, area or value. The views here expressed are not in conflict with the decision of this court in White v. People ex rel. 94 Ill. 604. There the statute expressly authorizing cities to compel lot owners to construct sidewalks in front of their lots was quoted, and the constitutional and statutory provisions relating to the making of local improvements by special assessments, or by special taxation of contiguous property, or otherwise, were referred to, and it was held that the city of Bloomington had the power to assess each lot with the whole cost of constructing the sidewalk in front of such lot, — in other words, the statute expressly conferring this power was held constitutional. Whether the legislature may or not, under the general police power or the power relating to local improvements, vest the corporate authorities of cities and villages with power to require, by ordinance, that each lot shall be connected by service-pipes with the sewer and water-mains in front of it, and that the entire cost of such connection shall be assessed against such lot, it is not now necessary to decide; but it seems clear that such power has not been conferred by the statute under which this ordinance was passed and the improvement ordered and made. Our attention is called to Warren v. City of Chicago, 118. Ill. 329, as an authority in support of the validity of the ordinance in question. In that case a special assessment was levied on each lot to pay the cost of the service-pipe put in to connect it with the water-main. The assessment on lots on one side of the street was more than on the other, but as the appellant who objected to the assessment owned an equal number of lots on each side of the street, the question here considered was immaterial to him, and apparently was not raised. But the judgment of confirmation was reversed on the ground that the ordinance unjustly discriminated against the appellant by arbitrarily dividing his lots so that he was required to pay for putting in a greater number of service-pipes, in proportion to frontage, than the other, property owners. There is no conflict between the decision in that case and the views here expressed. The county court erred in striking from the files objections 8 and 12, and in not sustaining the same. The judgment of the county court is reversed. Judgment reversed.