« ForrigeFortsett »
of drainage districts for the construction and maintenance of levees, drains and ditches by special assessments upon the property benefited thereby. In pursuance of this constitutional provision numerous drainage laws have been passed by the legislature. It will also be noted that the legislature is not limited by the constitution to special assessments for drainage purposes upon land or real estate. The constitution authorizes special assessments upon "property' benefited.
Two questions are involved in the assignment of error now under consideration: (1) Is the right to occupy a public street with a street railroad, together with its ties, rails and rolling stock, “property” within the meaning of the constitutional provision above quoted ? (2) If it is such property, does the law under which this drainage district was organized authorize and require that its property shall be assessed its due proportion of the cost of the improvement according to the benefits to be derived therefrom by such street railway?
Section 9 of article 9 of the constitution of 1870 authorizes the General Assembly to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment or by special taxation of “contiguous property," or otherwise. Said section of the constitution provides that "such taxes shall be uniform in respect to persons and property, within the jurisdiction of the body imposing the same." In order to make the constitutional provision last above quoted available, the legislature has from time to time enacted local improvement acts providing for the making of local improvements by special assessments upon contiguous property benefited thereby. In the case of Cicero and Proviso Street Railway Co. v. City of Chicago, 176 I11. 501, this court had before it the question whether the right of way of a street railway company, together with its right of user and occupancy of a street, constitutes property of a fixed and immovable character, which may be assessed for the local improvement of the street upon which it is located, the same as other property. In that case the previous decisions of the court bearing upon the question were reviewed, and the conclusion reached was, that where a street railway company, under a contract with the city for a term of years, laid its tracks in a public street and was in the possession and operation of a line of street railway, this franchise and its right of occupancy together constituted a property fixed and immovable in its character, like realty, and recognized and protected by the law as fully as a fee simple in land; that this property is of a character to be substantially and directly benefited by the proposed improvement, and that in proportion as it is thus benefited it should contribute to the cost of the improvement in common with other property upon the street. The cases of City of Chicago v. Baer, 41 Ill. 306, Parmelee v. City of Chicago, 60 id. 267, Chicago City Railway Co. v. City of Chicago, go id. 573, Kuehner v. City of Freeport, 143 id. 92, and Lightner v. City of Peoria, 150 id. 80, all of which bear, more or less directly, upon the question under consideration, were reviewed by this court, and the doctrine of those cases was re-affirmed in the Cicero Railway Co, case. These authorities establish the proposition beyond controversy that a street railway located upon a street of a municipality is "contiguous property within the meaning of section 9 of article 9 of the constitution and the local improvement statutes passed in pursuance thereof, and as such is liable to a special assessment for a local improvement upon such street. The words "contiguous property,' found in article 9 of the constitution, and the word "property,” found in section 31 of article 4 above quoted, refer to the same class of property. In other words, any property that
may be made liable for a special assessment for a local improvement by a city may be made liable by the legislature for a special assessment under a drainage statute. The authority of the legislature is as broad in the one case as in the other. By analogy to the rule established by this court in reference to the special assessment of street railways for local improvements made by a municipality, we are forced to the conclusion that a street railway, in the enjoyment of the same franchises and property rights within a drainage district, may also be subject to a special assessment for its proportionate share of the cost of a drainage improvement. There are no reasonable grounds for distinguishing between the power of the legislature in regard to the two classes of local improvements.
The second inquiry is, Has the legislature, by the enactment of the statute under which the appellee was organized, exercised its constitutional power by authorizing drainage districts to assess a street railway for a local improvement made by such district?
Appellee is organized under what is known as the Levee act, passed in 1879. As originally enacted this act clearly contemplated an assessment for benefits against lands. This intention appears from the general scope of the act as well as from numerous special provisions relating to the assessment of "lands benefited” and the methods provided for the collection of such assessments. In 1885 section 55 of the Levee act was amended so as to authorize the assessment of the property of “any public or corporate road or railroad" whenever the proposed improvement was so constructed as to “benefit any of such roads so that the roadbed or traveled track or other property of such road will be improved by the construction of said ditch, drain or levee," and the act authorized the commissioners to apportion to the county, State or free turnpike road, to the township for a township road, to the company for a corporate road or railroad, such portions of the cost and expense thereof as to private individuals, etc. The act as amended also provided ior the adjustment, by an agreement of the commissioners with the owners of the several classes of property referred to, of the amount that they, or any of them, should contribute to the improvement. The said section as amended also provided that the amount so assessed against any such company or private corporation, upon the confirmation of the assessment roll of the county court, should become a lien upon the real property of such railroad company or private corporation and have the same force and effect as a judgment at law in favor of such district against such railroad company or private corporation, and that execution may issue thereon in the same manner as executions issue from other courts of record, and that it shall be a lien upon personal property. In 1909 said section 55 was again so amended as to include streets and alleys of municipal corporations. At the same time section 55 was amended, a new section was enacted, which is section 3472, which provides that the act shall be liberally construed in furtherance of the objects sought to be accomplished thereby.
Under the constitution of 1848 it was held in the case of City of Chicago v. Baer, supra, that the principle of equality and uniformity, in taxation applies to special assessments for local improvements the same as to general taxation. Article 9 of the constitution of 1870, in relation to local improvements, seems to omit the requirements of equality and uniformity in reference to local improvements, and this court held in the case of Murphy v. People, 120 Ill. 234, that it was not essential to the validity of the special assessment that the principle of uniformity and equality should be observed. Section 31 of article 4 of the constitution of 1870, which authorized the legislature to pass laws permitting the organization' of drainage districts for agricultural, sanitary and mining purposes, provides that the cost of such improvements shall be paid “by special assessments upon the property benefited thereby." This section of the constitution clearly authorizes, if it does not absolutely require, that all the property within the boundaries of the drainage district shall be assessed its just share of the
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benefits to be derived from the improvements made. The general principle of equality of burdens in governmental matters is so eminently just and equitable that it appeals to the intelligence of every enlightened person. Conceding the power of the legislature to disregard this fundamental principle of taxation, it will not be inferred that there was an intention to discriminate between owners of similar property which shares equally in benefits unless the legislative intention to do so is clearly expressed. The legislature had the power, under the constitution, to provide that all property benefited by the work of a drainage district within the limits of the district should bear its just proportion of the burdens.
Prior to the amendment of 1885 nothing but land could be specially assessed under the Levee act. In view of the state of the law as it then stood, section 55 above referred to was enacted for the purpose of bringing within the taxing power of the drainage district certain other classes of property which prior to that time were not liable to assessment. While "street railways," as, such, are not specifically named in amended section 55, still "railroads” and roads, road-bed, free turnpike, township road and corporate road are all named as subject to special assessment. The word "railroad” is not a technical word. Ordinarily it is understood to apply to a commercial railroad operated by steam power upon rails, but it may mean, and often does include, a street railroad as well as a commercial road. No valid reason could be assigned for levying a special assessment against a steam railroad within a drainage district and at the same time exempting a street railway which, through a reduction in the cost of maintenance or otherwise, was equally benefited, from a like burden. We are of the opinion that, under the liberal construction which the legislature has enjoined upon us to give to the Levee act, the street railway was liable to assessment for its just share of the benefits to be derived from the work of this district.