(130 Ill. 566)

ADAMS COUNTY v. CITY OF QUINCY. (Supreme Court of Illinois. Oct. 31, 1889.) EXEMPTION FROM TAXATION - STREET IMPROVE

facts, and the comprehension of many details, | to a jury, would be improper or misleading. and the disposition to be made is complicated, We are of opinion, however, that the instructhe same mental capacity may be wholly in- tion under consideration, in the respect indisufficient to that intelligent understanding of cated, does not announce a correct rule, and the business requisite to the making of a valid especially is this so in view of the circumwill. If, in the latter case, the party, because stances of this case, and that it was improperly of weakness of intellect, is incapable of un- given. For the error in this regard, and in derstanding and remembering the nature and excluding the testimony of witnesses cailed extent of his property, and the disposition he by contestants for the reasons before stated, wishes to make of it, he has reached that the decree of the circuit court must be restage of imbecility which disqualifies him, in versed, and the cause remanded, which is the particular case, to make a valid will, but done. his imbecility has not necessarily reached totality, is not necessarily absolute; for although, from the complicated character of the business he is endeavoring to transact, he is unable to comprehend it, or the effect or result of his act, yet if his affairs were less complicated he might intelligently comprehend them, and make rational disposition of his property. As before said, absolute imbecility would necessarily mark a stage in the malady when there was perfect inanition, when all mental vigor was lost, and the person affected would be incapable of exercising memory, or the process of reason, however slight, and 4. Objection to the confirmation of a special therefore incapable of making any will, how-tax, on the ground that the application to the ever simple in its details. Something more county court was made before the city council had is required to give testamentary capacity than approved the report of the commissioners apmere passive memory. pointed to estimate the cost of the proposed improvement, will not be sustained, where the city council has amended its record so as to show that the report was actually approved before the application was filed.

MENTS.

1. Rev. St. Ill. c. 120, § 2, which exempts from county, does not apply to a special tax levied by a taxation all public buildings belonging to any city upon a county court-house to defray the cost of paving the street in front of such court-house. of a street need not state the width of the street. 2. An ordinance which provides for the paving

3. The paving of several streets may be provided for in the same ordinance, though one of such streets is wider than the others.

Appeal from county court, Adams county;
BENJAMIN T. BERRIAN, Judge.
Almeron Wheat, for appellant. T. B. Pape
and J. Sibley, for appellee.

The true inquiry in every case therefore is, did the person whose testamentary capacity is questioned have, at the time of making his will, such mind and memory as enabled him to understand the business in which he was then engaged, and the effect of the disposition made by him of his property? If he did, he was possessed of the sound mind and memory required by the statute. And all degrees SHOPE, C. J. The city of Quincy made apof impairment of the mental faculties, or de- plication to the county court of Adams county mentia, whether senile or produced by other for an order confirming the report of commiscauses, which destroys this testamentary ca- sioners appointed to levy a special tax upon pacity, will disqualify, whether it has reached lots, parts of lots, and tracts of land conthe stage of absolute imbecility or not. The tiguous to and touching upon the line of cerinquiry is to be made in view of the circum-tain streets proposed to be paved, in accordstances of the particular case, and a determi-ance with an ordinance of the city. nation reached by a consideration of the nat- county of Adams owns a block in the city, ure and character of the business performed under all the attendant conditions and circumstances. In this view the question of the mental capacity of the testator to make the writing alleged to be his last will and testament should be submitted to the jury. Yoe v. McCord, supra; Trish v. Newell, supra.

The

bounded partly by the street ordered to be improved, upon which block is situated the court-house of the county. This block was assessed its proportionate share of the cost of the proposed improvement, according to its frontage upon the streets to be improved. The county appeared, and filed various objecIt is, however, urged that the doctrine of tions to the report, all of which were overthe instruction is justified by expressions ruled, and judgment of confirmation entered. used in argument in a late case determined The county brings the case to this court by in this court. This is probably true, but appeal, and assigns for error the overruling upon examination it will be found that the of such objections, and the rendition of the principle contended for was wholly unneces-judgment. sary to the determination there reached. The The principal point urged upon our attencase referred to by counsel does not profess to overrule or modify in the least the rule announced in the many cases previously decided by this court, and to which we have referred. It frequently happens that principles unnecessary to the decision of the case are announced, which may be proper in argument, but which, when embodied in an instruction

tion is that the property, being the property of the county, and used solely for public purposes, is exempt from taxation. All public buildings belonging to any county are, by the statute, in terms exempted from taxation. Rev. St. c. 120, § 2. That the property here sought to be charged with the cost of this local improvement is exempted by the

cases where benefits are sought to be charged, the land-owner must appear to be entitled to damages; otherwise, he cannot be charged with benefits. Here the county is claiming no damage of the city, and therefore it cannot be charged with benefits. It follows, therefore, that since the adoption of the

statute from general taxation there can be no | assessments for local public improvements by question; but does this exemption extend to cities and villages, for special benefits thereby and embrace special taxation of contiguous conferred, were sustained under the power property to defray the expenses of such local held to be properly exercised under the right improvement? This court has repeatedly of eminent domain. In that view the assessheld that special assessments for local im- ment upon a lot was not regarded as a burprovements are not taxes, in the strict sense den or tax, in the strict sense, for the reaof that term; and that property held for a son that the owner would receive benefits at public use is not exempt from such assess- least equal to the sum levied or assessed upon ment, although exempt from taxation for his property. Hence we find, in many cases general purposes, (see Trustees v. Chicago, arising under the old constitution, the state12 Ill. 403; Higgins v. Chicago, 18 Ill. 276; ment that special assessments are not taxes, Chicago v. Colby, 20 Ill. 614; Peoria v. Kid- etc. It is apparent that to have held them der, 26 111. 351; Scammon v. Chicago, 42 Ill. to be taxes would have been to deny their 192; Wright v. Chicago, 46 Ill. 44; Mix v. validity entirely. As the constitution of 1848 Ross, 57 Ill. 121;) and that other property did not require that the compensation for exempted by statute from general taxation, property taken for public use should be in such as church property, etc., may be spe- money, the power to levy special assessments cially assessed for local improvements, (Ot-on contiguous property equal to the benefit tawa v. Trustees, 20 Ill. 423; Cook Co. v. conferred by the improvement might well be Chicago, 103 Ill. 646; McLean Co. v. Bloom- referred to the power of eminent domain, and ington, 106 Ill. 209; and also Society v. May- thereby sustain the constitutionality of laws or, etc., 116 Mass. 181.) Section 5, art. 9, authorizing such levies and assessments. of the constitution of 1848 provided that Under the present constitution, property "the corporate authorities of counties, town-taken for public use cannot be compensated ships, school-districts, cities, towns, and vil- for in benefits. Benefits are only allowed as lages may be vested with power to assess a set-off or reduction of damages to such and collect taxes for corporate purposes; parts of the property as are not taken. In such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same." A tax for the opening or improvement of a public street or other local improvement may be said to be a tax for a corporate purpose; and, while this clause of the constitution authorized the legislature to invest municipal corporate author-present constitution the power to make speities with power to assess and collect taxes for corporate purposes, that power was limited and restricted in this: that such taxes must be uniform in respect of person and property. This prohibited the levy of special assessment upon property to be benefited by the proposed improvement when it should have to bear more than its proportionate share of the burden. It is plain that, under this provision, special assessments imposing unequal burdens upon property could not be sustained under the power of taxation given by the clause of the constitution quoted. This court, however, sustained the power of cities and villages to make local improvements by special assessment, referring such power to the exercise of the right of eminent domain. Chicago v. Larned, 34 Ill. 276. In that case this court said: "Entertaining no doubt that this grant of power to the city council is against the fundamental law regulating the subject of taxation, we are compelled by a sense of our own duty so to declare, and to hold an assessment for improvements made on the basis of the frontage of the lots upon the street to be improved invalid, as containing neither the element of equality nor uniformity, if assessed under the taxing power; and if in exercise of the right of eminent domain, equally invalid, no compensation what-ject-matter, and herein before quoted, and unever being provided, or even contemplated, by the charter." Id. 282.

Charters conferring power to levy special v.22N.E.no.19-10

The constitu

cial assessments for local improvements can-
not now be referred to and sustained under
the right of eminent domain. Under the
present constitution, special assessment for
local improvements must be regarded as a
species of taxation. In 2 Dill. Mun. Corp.
(3d Ed.) § 735, the author says: "And it is,
as we shall presently see, by virtue of a
branch of this great power [of taxation] that
local assessments upon property benefited, or
legislatively declared to be specially benefited,
are imposed, in order to pay the expense of
making local improvements of a public nat-
ure within the municipality, adjoining or
near the property assessed."
tion of 1870 (article 9, § 9) provides that
"the general assembly may vest the corporate
authorities of cities, towns, and villages with
power to make local improvement by special
assessment, or by special taxation, of contig-
uous property, or otherwise. For all other
corporate purposes, all municipal corporations
may be vested with authority to assess and
collect taxes; but such taxes shall be uni-
form in respect to persons and property with-
in the jurisdiction of the body imposing the
same." This clause of the constitution is
radically different from the clause in the con-
stitution of 1848, relating to the same sub-

der which the former rulings referred to arose. As to such special taxation of contiguous property for local improvements, there is in

the present constitution no limitation as to tion ought to fall equally upon all, statutes equality and uniformity; while for all other exempting persons or property are construed municipal purposes taxation is required to be with strictness, and the exemption should be uniform in respect to persons and property, denied, unless so clearly granted as to be free as was provided in the prior constitution. from fair doubt. Such statutes will be conTaxation for general corporate purposes must strued most strongly against those claiming be uniform, therefore, while for local im- the exemption. Although an assessment' provements it may be by special tax, or by is in the nature of a tax, and is authorized way of special assessment, upon the contig- by, or is a branch of, the taxing power, yet uous property. Thus, as a mode of munici- a general statute exempting certain property pal taxation, such special assessments areas, for example, churches-from 'taxation clearly recognized. by any law of the state,' does not exempt it In the case of McLean Co. v. Blooming- from liability for a street assessment. So ton, supra, this court says: "The distinc- the exemption of property of a cemetery comtion between taxation and special assessment pany from any tax or public imposition is also clearly made in our present constitu- whatever' does not exempt it from a paving tion, (sections 1-5, 9, art. 9;) and, while pro- tax for improving a street in front of the viding that the general assembly may exempt property; the court (in an opinion elaboratethe property of the state, counties, and other ly examining the subject) holding that the municipal corporations from the former, (sec- intent of the legislature was to exempt the tion 3, supra,) makes no such provision in property from all taxes or impositions for regard to the latter, but, on the contrary, by the purpose of revenue, but not to exonerate section 9, supra, authorizes the general as- it from charges inseparably incident to its sembly to vest the corporate authorities of location with respect to other property." cities, towns, and villages with power to See, also, Trustees v. McConnel, 12 Ill. 138; make local improvements by special assess-University v. People, 80 Ill. 333; People v. ments,' without any restriction as to the Mayor, etc., 4 N. Y. 419-432; Sharp v. Speir, property to be assessed." What is there said 4 Hill, 76; In re Church, 66 N. Y. 395; Sois equally applicable in respect to special tax-ciety v. Mayor, etc., 116 Mass. 181; Buffalo ation for local improvement. See Wh te v. City Cemetery v. Buffalo, 46 N. Y. 506; OtPeople, 94 Ill. 612; Rev. St. c. 24, art. 8, § 5. tawa v. Spencer, 40 Ill. 211; McLean Co. v. So in Railroad Co. v. City of Decatur, 18 N. Bloomington, supra; People v. Society, 87 E. Rep. 315, (opinion filed September 27, Ill. 246. The statute relied on as creating 1888,) it was expressly ruled that the exemp- the exemption is not found in the law aution of the Illinois Central Railroad from tax-thorizing special taxation, but in the chapter ation had no application to special assessment relating to the general subject of revenue; of contiguous property imposed by the city for and, while all are parts of the same revision, local improvements. Under this grant of pow-it was, we have no doubt, intended to apply er, (section 9, art. 9,) the legislature may authorize local public improvements to be made by special assessments to the extent the property assessed will be benefited, or by special taxation of contiguous property according to its frontage upon the proposed improvement, or according to its value, or by general taxation for corporate purposes, or partly by general taxation, and partly by special assessment or special taxation. Either one of these modes involves taxation, either general or special. White v. People, 94 Ill. 617, 618. The levy of such local assessment or special tax is not a taking of private property for public use under the right of eminent domain, but is an exercise of the taxing power. 2 Dill. Mun. Corp. § 596; Allen v. Drew, 44 Vt. 175. It is true that special taxation differs, in some respects, from special assessments, when made for the purposes of local improvement; but they are placed by the constitution in the same category and class. They are both treated as a species of taxation for corporate purposes.

The question, however, remains whether the legislature, in the exercise of the power, has exempted the property held for county purposes from either special assessments or special taxation for local improvements. On this subject, it is said by Dillon, (2 Mun. Corp. § 776, 777:) "As the burden of taxa

to taxation for general revenue. The tax sought to be collected in this case is for a special purpose,—the improvement of certain parts of certain streets within the city upon which the particular property abuts. If collected, it will form no part of the general revenue of the city. If the legislature had intended to exempt property used for public purposes from special taxation or assessment, very different language, it seems to us, would have been employed, so as to exclude all doubt upon the subject. The city authorities have determined that the property of the county will be benefited by the special tax levy; at least, they have exercised a power clearly delegated by the legislature, and that is conclusive, in the absence of fraud or abuse of the power thus vested in it. We are of opinion that the property of the county is liable to special taxation as other property, and that there is no warrant for the exemption claimed.

This disposes of the principal question, but various minor objections are urged to the proceeding, and to the legality of most of the steps taken to make and confirm this assessment, some of which will be noticed. The legislature, under ample constitutional authority, have by section 1, art. 9, of the cities and village act, vested the corporate authorities of cities and villages "with power to

with its provisions is all that is required." It was not necessary for the ordinance passed by the city to state the width of the streets to be paved, in order to enable the committee to estimate the cost of the proposed improvements. The width of the street was a matter of easy ascertainment. The ordinance required the paving of the street, and cannot, we think, be construed to require the paving of the then existing sidewalks. It was clearly not so understood by any of the city authorities, or by any one acting for them. We are of opinion that the ordinance was in this particular sufficiently definite and certain. See Railway Co. v. Jacksonville, 114 I. 562, 2 N. E. Rep. 478.

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 power must be exercised by the passage of an ordinance prescribing the mode to be pursued, and whether the improvement "shall be made by special assess ment, or by special taxation, of contiguous property, or general taxation, or both." The word "contiguous" is here used in its popular sense, and means "in actual or close contact;" "touching;" "adjacent;" or "near." If the improvement is of a street or sidewalk, contiguous property is such as abuts upon the street or sidewalk, or is bounded by the street. When the ordinance provides It is said by appellant's counsel that, as that the improvement shall be made by gen- one of the streets is 10 feet wider than the eral taxation, the cost thereof is added to the rest, improvements to be paid for by special general appropriation bill of such city or taxation cannot legally be provided for in one village, and is to be levied and collected with, and the same ordinance. In City of Springand as a part of, the general taxes of the city field v. Green, 120 Ill. 269, 11 N. E. Rep. or village. When the local improvement is 261, it was held that an ordinance providing ordered to be made by special taxation, the for the paving of several streets and alleys, method of its levy, assessment, and collection and parts of streets, with the same material, is specially pointed out in the act as being and in the same way, is not obnoxious to the the same as prescribed for the making, levy-objection that it embraces more than one iming, and collection of special assessments. provement, although there may be a differSections 18-51. The provisions relating to ence in the width of the streets proposed to special assessments, so far as they may be be paved, and the cost of paving certain railapplicable, are required to be observed in way tracks is excluded from the assessment cases of special taxation. Section 19 of the in respect of some of the said streets. We act provides that whenever such local im- regard this, and the subsequent case of Wilprovements are to be made, wholly or in bur v. City of Springfield, 123 Ill. 395, 14 N. part, by special assessment, an ordinance E. Rep. 871, as determining the question here shall be passed to that effect, specifying presented adversely to the contention of therein the nature, character, locality, and counsel. description of such improvements. Provision is made by the twentieth section for the appointment of a committee of the council or board of trustees, or three competent persons, to make an estimate of the cost of the improvement contemplated by the ordinance, including labor, material, and all other expenses attending the same, and the cost of making and levying the assessment, who shall report the same in writing to the council or board of trustees. Upon approval of such report by the council or board of trustees, they may order a petition to be filed in the county court, etc. These several provisions are alike applicable to the proceeding by special assessment and by special taxation. It is manifest that in cases of special taxation the amount to be assessed against each particular tract or lot can be known only upon report of the cost of the improvements, etc., and must be ascertained and reported by the committee to the city council or board of trustees. The ordinance passed in this case specifies the nature, character, locality, and description of the work fully and in sufficient detail. As said in City of Kankakee v. Potter, 119 Ill. 328, 10 N. E. Rep. 212: "It is not expected that an ordinance of this kind should set forth the details and all the particulars of the work. Indeed, this is not contemplated, and the statute requires nothing of the kind. A substantial compliance

It is also said that the application to the county court was made before the city council had approved the report of the commissioners appointed by them to make an estimate of the cost of the proposed improvement. The petition to the county court showed that the city council had approved of the report of its committee, and there was evidence before that court tending to support this contention. This objection does not go to the merits, and we see no reason why the action of the city council in ordering the presentation of its petition to the county court was not of itself an approval of the action of the commissioners. However this may be, it was shown that the city council, at its meeting in July, 1887, approved said report. The right of the city council to amend the record of its meetings to make them accord with the fact is not questioned, and it is shown that the record was amended by order of the city council so as to show a formal approval of the report made by the committee appointed by the council to levy said special tax prior to the application to the county court.

Upon full consideration of the entire record, and of the points made by counsel, we find no substantial objection to the proceedings, and no error for which the judgment should be reversed, and it will therefore be affirmed.