Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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tna t i t was a legitimate use of a street to allow a railroad to be con-
J^^^ted and operated within it, and even where private property-
nolcl^^ were injured thereby, there could be no recovery.

'*'^ CIncago v. Rumsey, 87 111. 348, we held that it was a legiti-
miito use of a street to allow a tunnel to be constructed in it.
^Hc laying of railroad tracks and the making of the necessary

^^^^Vations and embankments therefor, and the making of a tun-
^®* in a street, in many instances practically destroy streets for the
^'"^itiary street purposes, and in all cases they materially contract
*^^ abridge the use of the street for the ordinary purposes of

^^ Vit what is the difference between the power to abridge and con-

f/*^ t a use and the power to change it ? Neither is consistent with

^ Ci4)ntinued right in the public to have a street perpetually remain

^Ixe identical use to which it is at first dedicated.

^^>ie principle controlling, as we have seen, is, ** when no private

\ioXerests are involved or invaded, the legislature may close a high^

<aY or street and relinquish altogether its use by the public, or it

may regulate such use or restrict it"

Dillou, in his work on Municipal Corporations (1st ed.), § 527,
says: "The plenary power of the legislature over streets and high-
ways is such that it may, in the absence of special constitutional
featnction, vacate or discontinue them, or invest municipal corpo-
rations with this authority.**
And in the same volume, § 519, he again says: '* As respects the

Digitized by



People ex rel. Bransom ▼. Walsh.

public or municipalities, there is no limit upon the power of the
legislature as to the uses to which streets may be devoted."

See, also, Chray v. Iowa Land Co., 26 Iowa, 387; McDonald v.
English, 85 IlL 235; Oaleahurg v. Hawkinsony 75 id. 156.

Even where private parties are invested with a franchise to build
and control a toll-bridge or toll-road, the legislature may authorize
the franchise to be taken and condemned for public use, upon mak-
ing just compensation. West River Bridge Co, v. Dix, 6 How. 507
— a fortiori can public property be taken which is held for one use
and appropriated to another and different use ?

The private rights or interests in public property cannot, of
course, be taken without compensation to be made pursuant to law.

But "every species of property which may become necessary for
the public use, and which the government cannot appropriate under
any other recognized right, is subject to be seized and appropriated
under the right of eminent domain." Cooley's Const. Lim. (1st
ed.) 526.

We are not authorized to assume, in this proceeding, that the
park commissioners will undertake to divest private rights and ap-
propriate them to public use without making satisfactory compen-
sation, or proceeding to condemn them under the law relating to
eminent domain.

To authorize a judgment of ouster, it is essential that it be estab-
lished, as respects the streets in controversy, that the park commis-
sioners are usurpers and intruders, and hence that their every act
is in violation of law. If they may, by any legal steps or process,
make the diversion complained of, the judgment below is right, be-
cause we are to assume they will, in all things, act in conformity
with law, until the contrary is aflSrmatively made to appear.

In Kreigh v. Chicago, 86 111. 407, we held no power existed in the
city to alienate the control of its streets to the park commissioners,
and that the thirty-eighth section of chapter 105 of the Kevised
Statutes of 1874, entitled Parks, authorizing the connecting of con-
tiguous parks by boulevards or pleasure- ways, and putting such
boulevards or pleasure- ways under the control of park commission-
ers, etc., had no reference to prior established streets, and did not
authorize the park commissioners to purchase or acquire established
streets, nor the city authorities to surrender control over them.
But in the present case, the needed legislation is supplied. What
was there held to be wanting, we have here; and the question is

Digitized by




People ex rel. Bransom v. Walsh.

not^ have the commissiouers and the city the power ander the stat-
ute^ but was it competent for the legislatui'e to enact the statute
conferring the power upon the city and the park commissioners.
l^ the ordinance of the city granting to the park commissioners
^W use and control of the parts of streets in controversy, there is
this reservation: "Provided, however, that nothing in this ordi-
nance contained shall be construed as a waiver or relinquishment
bjor on the part of said city, of any of its rights or powers in re-
lation to the laying of water or gas mains and pipes, and the build-
ing and repairing of sewers in said streets, and the regulation of
openings for the same; all powers which said city now has in rela-
tion to water and gas pipes and sewers, and their connections and
wie regpilation of the same, and the openings for the same in streets
*ni Alleys of said city, being hereby expressly reserved as to the
sail t>£^Tt of Michigan avenue and Thirty-fifth street in as ample a
manixeir as if the aforesaid consent was not given.**

^ou.n8el for relators make the point on this, that "the control
^^tenapiated by the act of 1879 is an individual control,'* that
^*^ a.l)8olute control is necessary in order to the execution of the
P>^era of the commissioners, and is inconsistent with a partial
^^tx-ol by the city.*' They argue r '* The question here is, has the
^^^cil assented. It had the grant of powers so to do, but might
.. *^^fc, as it should choose; it was under no moral or legal obliga-
^^^ * The whole ordinance read together shows that it did not
^^^V in the manner contemplated pr authorized.**

v^ 18 not attempted to be shown why an absolute control is nec-
essary in order to the execution of the powers of the commission*
^8. It is asserted that this necessity is inconsistent with a partial
control by the city, and if the necessity be conceded, the conclu-
sion would clearly be correct But why may not the main objects
and purposes of the grant to the park commissioners be entirely
consistent with the exercise of the reserved powers in the city P

The laying of water or gas mains and pipes, and the building
and repairing of sewers, would have to be so done as to interfere as
little as possible with the use of the streets; and it approximates
accnrately sufficiently for all practical purposes, to say that when
80 done, they would not materially interfere with the use of the
Btreete. Some inconvenience would doubtless occasionally result,
by reason of disagreement between the city council and the park
commissioners as to systems of sewerage, but in such case the park

Digitized by



People ex rel. Bransom v. Walsh.

•jommissioners would simply have to yield -^ they take the grant
cufn otiere.

The act of April 9, 1879, does not make it obligatory upon the
city to confer control over the streets upon the park comnussioners
It only enables them to do so or not as they shall choose. The cor«
pomte authorities having control of any such streets must first
give their consent. They are iit liberty to entirely withhold it, or
grant it only subject to conditions. If the park commissioners
accept it with conditions, the performance of the conditions then
becomes obligatory.

There is no more apparent repugnancy between the grant and
the reservation here than there is between a lease of lands for farm-
ing purposes and the reservation of the right to take timber or
gravel, etc., from the land, or to travel across it, or to use water
from springs thereon, or to excavate and mine for coal or other
minerals beneath its surface.

The grant is merely charged with the burden of the reservation.
The rights of each may be enjoyed without necessary conflict

Upon the whole we think the judgment below to be rfght. The
moYQ fact that the park commissioners may claim the right to do
some act prejudicial to the interests of individuals, furnishes no
reason why they may not, as affects the public, do those acts which
are clearly sanctioned by law. If they may, as respects the control
and improvement of these streets in some respects, act as a corpo-
ration, they have a franchise, and cannot be declared usurpers and
intruders merely because in other respects that they might claim
the right to act they would exceed the authority vested in them by

Intrusion or usurpation and trespass are not synonymous terms.

As respects any excess of authority, the action of the commis-
sioners may be controlled by injunction; and they maybe held in-
dividually responsible in actions by those who arc pecuniarily in-
jured ; and in proper cases they may be liable to criminal prosecu-

But this proceeding merely questions their right to act at all
within, and not without, the scope of statutory authority.

The judgment is affirmed.


Digitized by


SEPTEMBl!>R TERM, 1880. 145

Craw V. Village of Tolono.


(96 m. 855.)

ConHUutional law — taxation for local impravemeiUs,

tJnder a constitutioDal power to authorize local improvements In dtlei^
towns, and yillages '* by special taxation of contiguous property or other-
wise/' it is not competent for the legislatare to enact that the cost of aide-
walks maj be recovered of the non-resident lot owners bjr action at Uw.

fllHE opinion states the case.

J. S, Lothrop, for appellants.

franciif M. Wright and William 2>. Somers, for appellees.

I>iCKEY, C. J. The constitutional power of the general assembly

^ provide for the construction of sidewalks in cities and yillages

^y special tax upon the adjoining lots, according to their respective

rootage upon such sidewalks, is sustained in the decision made by

* ''Majority of this court in the case of While v. People, 94 111. 604^

'^^ Deed not be further discussed. Serious apprehensions are

Passed lest, under the power to impose special taxation upon

^ ^%'aou8 property for local improvements, cities may, in case of

g# : ^^P^nsive improvements, abuse the power, and under thq form

o '^ exercise, practically confiscate private property to public use,

ioug- ^ it ia confined to sidewalks, there is little cause for such

Fpreheusion. It will be time enough to consider the question

^Q & oase of oppression occurs. Meanwhile, it may not be amiss

^^S^st that all this must be done, if at all, by ordinance, and it

\.^ ^^ remembered that ordinances, to be valid, must be reason*

, l^^^^ unfair, — unfair or oppressive, — and must spring from an

T^ Exercise of legislative discretion.

^ fticts of this case, however, present another and very grave

V^^von^ Under our Constitution and statutes, can the corporate

auiuotitiea of a city or village, by ordinance, impose upon the owner

oisaclx adjoining lot or lots a personal liability to pay such special

to» ^tx a case where such owner is not a resident of such city or

TBage ? This question did not arise in Whitens csae.

Digitized by


J44 iLLmois,

Cri^w V. Village of Tolono.

Onr present Constitution says : '^ The general assembly may vest
the corporate authorities of cities, towns and vilLiges with power
to make local improvements ♦ ♦ ♦ by special taxation of con-
tiguous property or otherwise."

Under this clause, we have held that it is competent for the
legislature to confer upon the corporate authorities of cities, towns
and villages power to impose upon contiguous property, in the form
of a special tax, the burden of the expense of the construction of
a sidewalk along the line of such property, and that such tax may
be lawfully assessed upon the respective parts thereof, in proportion
to the frontage of each part upon such improvement, and that the
payment of such tax may be enforced against the property so taxed.
White V. People f supra.

** Special taxation imposed upon contiguous property" is one
thing, and special taxation imposed upon the owners of such
contiguous property is quite another and an entirely different thing.

It is said the subjects of taxation " arc persons, property and
business." Burroughs on Taxation, § 6, ch. 1. Strictly, the sub-
jects of taxation ai*e persons and property ; for a tax on business
is necessarily a mere tax upon the person or persons carrying on the
business. A tax on persons may bo imposed upon persons merely as
such, as in the case of a poll-tax or upon persons as owners
of property, or as the possessors of property, or as the proprietors
or the managers of a business carried on, — in all which cases the
tax is a personal tax, the payment of which is a personal duty, and
the property or business entering into the transaction is merely
adopted as a basis for the measure of the amount of the tax by its
value, quantity, extent, situation or condition. Such taxes, although
measured by property or business, and although made a lien some-
times upon the property adopted as a basis of such measure, are,
strictly speaking, taxes against the persons in question, and such
persons may be lawfully made liable for their non-payment, and the
entire estate of such persons may be lawfully made liable to seizure
in satisfaction of such personal liability. A mere taxation of
property imposes no personal liability upon the owner thereof. It
is an imposition of the charge merely upon the thing itself, and
not upon the owner or possessor of the thing. In the nature of
things, if the charge be not paid by some one interested in the
thing taxed, resort can be had for the enforcement of each a tax,
only to the thing so taxed.

Digitized by



Craw Y. Village of Tolono.

Specii^l taxation of contiguous property for the purpose of local
improve Indents is a thing in its object and character yery different
from g^i3.cral taxation for the purpose of revenue, and a thing yery
different^ from local taxation by municipal corporations for reyenue
to be &x>;plied to other corporate purposes. The Constitution has
wisely j^ir^ovided that general taxation for reyenue shall be by yalua-
tioD, so tliat eyery person shall pay a tax in proportion to the yalue
of his i>x-operty, and in the case of taxation by a municipal corpora-
tion for* jevenue for other corporate purposes, it is required that
such ta^CL^s shall be uniform in respect to persons and property
within t;.l:ie jurisdiction of the body imposing the same.

Taxa.tiion for local improyements is intended for the benefit of
the pro;^>^rty subjected to such tax, and although such benefits may
not be ^:3cactly confined to contiguous property, yet for practical
purpose f^^ it will generally be so nearly so that to simplify the pro-
.*^S and ayoid the expense and delay of nicely adjusting the
cqaitie^^ the Constitution has provided that the property contiguous
^ ^^ i 'Oaproyement may be required to bear this burden, inasmuch
as that ^g ^ general rule will do no serious injustice.

.^^^tion for re venue is imposed on the citizen of the State or

J^^et^ ti of the municipal corporation, or person doing business

^ . ^^ "the jurisdiction thereof, to compel him to contribute to the

°^^*i^i:iance of the government, State or municipal, by which his

, 1 ^^^>«rty and property or business are protected, in common with

^^ all other citizens and residents. This, under our system,

. J^^*"sonal tax imposed upon the owners of property in propor-

^ *''^ the yalue of the property of each, and to secure its collec-

, ^^ch tax is made a lien upon the property of the person thus

,. .^^j* It is entirely competent to declare such a tax a personal

^tjr of the person so taxed. To pay it is a duty he owes to the


^t so with special taxation for local improvements on property

. ^Stious to the improvement. The owner of such property is

^^pposed to derive any special benefit from the improvement,

, X*t in so far as his contiguous property is to be benefited by

^^^provement Hence this special taxation (which, in the ab-

p^ of express authority in the Constitution, could not lawfully

A*^ posed), is by the words of the grant of power in the Consti-

J*^on limited to taxing the contiguous property. There is no au-

^^^Tity given to make local improvements by special taxation of


Digitized by




Craw T. Village of Tolono.

i U'






the owners of contiguous property. Special taxation as spoken of
in our Constitution is based upon the supposed benefit to the con-
tiguous property, and differs from special assessments only in the
mode of ascertaining the benefits. In the case of special taxation
tlic imposition of the tax by the corporate authorities is of itself a
determination that the benefits to the contiguous property will be
as great as the burden of the expense of the improvement, and
that such benefits will be so nearly limited or confined in their
effect to contiguous property that no serious injustice will be done
by imposing the whole expense upon such property. In the case
of special assessments, the property to be benefited must be ascer-
tulfied by careful investigation, and the burden must be distributed
according to the carefully ascertained proportion in which each
part thereof will be beneficially affected.

Special taxation of contiguous property can no more be made a
personal liability of the owners of the contiguous property so taxed,
tlian can a special assessment be made a personal liability of the
owners of property against which an assessment is made on account
of supposed benefits. Both are proceedings in rem and not in per^
sonam under our Constitution.

A man who resides or transacts business in a State or in a city,
town or village, is in duty bound to contribute his share to the
revenue necessary to sustain such State or municipal governments,
within whose jurisdiction he resides or transacts business, and any
part of his property may be charged with the same and taken for
the pay men t thereof.

A man who owns real estate within a State or municipality
necessarily subjects that property to the lawful rules and regulations
of the State or municipality; but he does not thereby subject the rest
of his fortune, not within such State or municipality, to the juris-
diction of such municipality, unless he is a citizen or resident of
such State or municipality, or transacts business therein; and if a
resident, or doing business therein, his estate generally cannot be
subjected to any charge by way of taxation which is not uniform
in respect to persons and property in like condition throughout the
jurisdiction of the State or municipality. It is only in respect to
the making of local improvements by special taxation of contigu-
ous property that this rule of uniformity is relaxed by our Consti-

The general assembly being clothed with authority, by special


Digitized by



Gompton v. Banker Hill Bank.

^Si^ exceptional provision of our Gdnstitution^ to ** vest in cities,
towns and villages " power to make local improvements by special
taxation of contiguous property, may undoubtedly prescribe the
mode ill which the tax may Fjc enforced upon the contiguous prop-
erty, but cannot, under the form of prescribing the mode of en-
forcenaei-^t of such tax, exceed their constitutional powers by im-
posing 1^ special personal liability for such taxation upon subjects
not enn|>i-aced in the i>ower. We therefore hold that so much of
the 3d soction of the act of 1875, entitled **An act to provide ad-
uitioaal means for the construction of sidewalks in cities, towns
and villages," as authorizes Ihe cost of such sidewalks, or any part
thereof, to bo recovered of the owners thereof by action at law, is
unconsfc>tutional and inoperative, and that so much of the same
section ixs seems to authorize the seizure, by warrant issued by the
c erk, of the personal property of the owners, in satisfaction of such
special t-ax, is without constitutional authority, and void. We see
^^ objocition to the issue of a warrant to an officer, authorizing him
recei ve the amount of such tax, if paid by the owner of the lot
qao^tion, and requiring him to make return of non-payment, as
asi^ for proceeding under the law to have judgment tn rem
,!^^^ the property, for the purpose of collecting such special tax.
. *^ Circuit Court, m this case, ought to have enjoined appellees
,?"^ -^Q^rther proceedings against the complainants, in regard to
, ^^^^^, in the way of charging tliem personally therewith, or in
., ^^^^3 of subjecting to the payment thereof any property of
^^ <:>f the complainants, other than the lots on which the special
,p^^^^^ imposed.
^^ decree must be reversed and the cause remanded*

Decree rwenBcL

^^^^tii-DOH, Craiq and Soott, JJ., dissenting.

'^^— tof


(96 m. 801.1

Dure99 — threat of lawful orretL

lawful arreet of a husband for a crime actoallj oommltled hf bte
1^^^^ - >K>t oonstitate such daress as will relieve the wife from her oontiaot !•
^^^f^^mlfy the person injured.

Digitized by




Compton T. Banker Hill Bank.


T7IT to set aside a deed. The opinion states the facts. The de-
fendant had judgment below.

Yancey £ Richards and L. P. Peebles, for appellant.

John M. £ John Mayo Palmer, for appellees.

ScHOLFiELD^ J. This was a bill in equity by appellant against
appellees, to set aside a deed of a house and lot, on the ground that
it was executed by reason of fraud, duress and imposition. The
court below decreed that the bill be dismissed.

The facts on which the relief is sought, are : George Compton,
the husband of the appellant, was cashier of the Bunker Hill Bank,
a corporation doing a general banking business at Bunker Hill,
Macoupin county, Illinois. It was discovered that he and one J.
A. Beach had embezzled the funds of the bank, and upon being
interrogated in reference thereto, he admitted that he had used
funds of the bank to the amount of about $6,000. This admission
was made on the 23d of October, 1877. On the same day the board
of directors of the bank unanimously adopted and entered upon
their records, the following resolution.

" Whereas, Messrs. J. A. Beach and George Compton, having
by their statement to the board of directors, shown a deficit in the
money belonging to the bank, for which they are responsible,
amount of said deficit not at this time known, that in consideration
of said Beach and Compton making a full statement of the amount
due, and also making the bank secure in way of deeds to real estate
and transfers of personal property, so far as they in their power
can do, we hereby agree and promise that no criminal prosecution
will be made against them by the board.'*

Compton subsequently admitted that the amount which he had
appropriated, belonging to the bank, was $7,781.25.

On the same day, and after the adoption of the resolution, the
deed in controversy was executed.

The circumstances connected with the execution of the deed are
thus detailed by the appellant in her evidence: "All I knew about
the officers of the bank charging him" (her husband) "with em-
bezzlement, is what I heard from the outside and from my husband;
he told me the officers of the bank wexe going to hold him and Mr-

Digitized by



Compton V. Bunker Hill Bank.

Beach acioountable for the losses. On or about the 23d of October,
1877, I signed what they said was a deed ; I neither read it nor had
it read i n. my presence ; my sister Helen, my brother Frank, Mr.
Harry Bvidd, Mr. Compton, and my daughter !Panuy, were all who
were present when the deed was executed ; I received np considera-
tion for- the deed ; the inducement offered me was, my brother
Frant to me and said the people were all angry with my hus-
band. I^y that I thought he meant all the bank people, oflBcers
and 4ej>ositors, and that in order to appease them, and saTO my
husbaud, and savo him from the penalty of the law, I ought to
part witli every thing, even to my wardrobe ; and he said, 'In fact,
you mixst do it.' And when I signed the deed, I said to my hus-
band, oxight I not to have some written promise from the bank

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 19 of 123)