Board of Education v. People ex rel. Commissioners of Lincoln Park

Mr. Justice Magruder delivered the opinion of the court: The brief of the appellant in this case seems to be an effort to induce this court to overrule the decision, made by it in the case of City of Chicago, for use of Schools v. City of Chicago, 207 Ill. 37. After a careful consideration of the argument of counsel for appellant, we see no reason for retreating from the views expressed in the decision in that-case. Substantially, the only question there involved, which is also the only question here involved, is whether or not the property assessed, being school property, and not a part of any section 16, or acquired in any way with funds derived from that source, is subject to special assessment. We held, in the case referred to, that such school property was subject to special assessment. The principal points, made by the appellant in the case at bar, are that the owner of school property in the city of Chicago is the State of Illinois; that to confirm a special assessment against any of said-property involves a suit at law in reality against the State, though it is not nominally made a party of record; that the law prohibits the suing of the State; that the board of education of the city of Chicago is a governmental State agency, and no authority of law exists for suing the same; that all school property within the jurisdiction of the board must under the constitution be used for public school purposes, and that to permit it to be subject to special assessment for boulevard and park improvements would be to allow its use for other than stich purposes; that the charge and control of school property within the limits of the city of Chicago rest with the board of education, and to permit the same to be subject to special assessment for park and boulevard purposes would necessitate the taking of the charge and control of the same out of the hands of the board; that all property of every description under the charge and control of the board must be used for public school purposes, and there is no authority of law for levying any tax under any law of this State, applicable to the public school system within the city of Chicago, the proceeds of which can be expended for purposes other than public school purposes, and to permit this special assessment of public school property would involve the use of public school moneys for other than public school purposes; and that, therefore, for these reasons, public school property is exempt from the special assessments levied in this proceeding. Substantially, all the questions thus presented for our consideration were determined in the case of City of Chicago v. City of Chicago, supra, against the contentions of the appellant, and we see no reason for a re-argument or re-discussion of the same. The only difference between the case at bar and the case already decided is the fact that, in the case referred to, the city of Chicago levied the special assessment there involved, while, in the case at bar, the special assessments have been levied by the commissioners of Lincoln Park. The principles, announced in the decided case, are the same as those here involved, and -are as well applicable to these assessments, levied by the Lincoln Park commissioners, as to the other assessments levied by the city of Chicago. The' commissioners of Lincoln Park have power to levy assessments by and with the consent of the corporate authorities of the town, within which said park is situated, (3 Starr & Curt. Ann. Stat.—2d ed.—2861; Jones v. Town of Lake View, 151 Ill. 663; Halsey v. Town of Lake View, 188 id. 540.) The Lincoln Park commissioners have power conferred upon them by the legislature of the State to levy special assessments for the purpose of making local improvements on the various bbulevards and parkways in their jurisdiction with the consent of the corporate authorities of the towns, within which the park is situated. And it is so alleged in the petition. In City of Chicago v. City of Chicago, supra, we said (p. 45) : “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.” We are unable to say that the improvement of Diversey avenue boulevard by the grading, curbing, filling, paving and lighting of the same is not a benefit to the public school property here involved, which abuts upon said boulevard. It is true that the boulevard may be wider and better paved and better lighted than an ordinary street, but it cannot be said that the only object of the assessments here involved is to beautify and improve the boulevard as a driveway. The improvements in question in addition to the beautifying of the boulevard as a driveway, benefit the property assessed for practical use. The legislature delegated to the park commissioners the power to pave and improve the streets, taken by them to be used as boulevards in connection with the park system, in the same manner as the city of Chicago is empowered to improve its streets. The boulevard here in question was so taken by the commissioners of Lincoln' Park, and under these proceedings was improved by curbing, filling, grading, paving and lighting, in the same manner as other streets are improved. In City of Chicago v. City of Chicago, supra, we held that such a suit as this was not against the State of Illinois, using the following language in that case (p. 44) : “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.” In the case referred to, it was also distinctly held that exemption from taxation does not exempt from special assessments; and that school property, not being a part of section 16 of the township nor derived therefrom, is subject to special assessment, whether occupied for school purposes, vacant, or occupied by buildings from which the school receives rent; and that the payment of a special assessment against school property for improvements of benefit to the property is a proper method of applying the funds of a school district for the benefit of its schools. It is to be noted that this is a petition for mandamus against the board of education to compel it to pay the judgments of confirmation already rendered. The proceeding is, therefore, a collateral one, and the validity of the judgments of confirmation cannot be here questioned, unless it be shown that the court rendering them was without jurisdiction. Inasmuch as the school property was subject to special assessment in the manner already stated, the court, which rendered the judgment of confirmation, had jurisdiction. It is alleged in the petition, that no objection, such as is here urged, was made or filed by the board of education in either of the special assessment proceedings hereinbefore referred to. This allegation is admitted by the demurrer to be true. As the board did not make such objections in the original assessment proceeding, it is too late to do so in this collateral proceeding. For the reasons above stated, we are of the opinion that the court below decided correctly in sustaining the demurrer to the petition. Accordingly, the judgment of the circuit court of Cook county is affirmed. Judgment affirmed.