such improvements as are paid for by special assessment or special taxation. In a certain sense all improvements within a municipality are local,— that is, they do not extend to all parts of the state. They have, however, locality, that is, they are nearer to some persons and property than others. Under the constitution of 1848, as well as under the present constitution, it has been held that a special assessment means 'an assessment to pay for an improvement for public purposes upon real property which is, by reason of the locality of the improvement, specially benefited, beyond the benefits by the improvement to real property, generally, throughout the municipality, proportioned by such benefits.' A local improvement is a public improvement 'which, by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality.' The test as to whether such an improvement is local is whether it specially benefits the property assessed. An improvement may be local, though of some general benefit to the public, when the substantial benefits to be derived from it are local in their nature and the portion of the city where the improvement is made will be specially and peculiarly benefited in the enhancement of the value of the property. When it is proposed by a municipal corporation to make an improvement, the question whether it is local in its character, so that it can be made by special assessment, is one of fact and not of law. The corporate authorities, however, cannot arbitrarily determine that the improvement shall be treated as local when it is, in fact, general in its character. Their decision on this question is subject to review by the courts." Two muncipalities cannot join in a special assessment proceeding for the purpose of defraying the cost of an improvement that will extend from one municipality into the other. Thus, the city of Chicago and the town of Cicero cannot, in a joint special assessment proceeding, provide for the construction of a continuous sewer, designed for use by both municipalities, and extending from one into the other.25 In the opinion of the court a local improvement must be wholly under the control of one municipality. An improvement which is designed primarily for the accomodation and convenience of the people in a certain part or locality of a municipality, and which is of such a nature that it confers a special benefit upon the property in that locality, is a local improvement, even though it may incidentally benefit the public at large; but an improvement which is designed primarily for the benefit of the general public is not a local improvement even though the property in its immediate vicinity may receive greater benefits therefrom than property generally in the municipality.26 An improvement which contemplates the widening of the Chicago river for the purpose of improving navigation on the river, is not a local improvement, and the cost thereof cannot be defrayed by special assessments or special taxation.27 A city has no power to provide for the construction, by special assessments, of a viaduct or bridge over a deep gulch or ravine, for the purpose of restoring the continuity of one of the main streets in the city.28 But a city may provide for the construction of a viaduct over a series of railroad tracks which cross one of the city's principal thoroughfares and direct that the cost thereof shall be paid by special assessments. And, in such a case, it is not material that the viaduct when completed will extend across a creek and serve the purpose of a bridge over the stream, if the evidence shows that the viaduct could not be properly constructed without locating one of the approaches on the other side of the stream.29 25 Loeffler v City of Chicago, 246 Ill. 43 (1910); see, also, Hundley v Lincoln Park Commissioners, 67 Ill. 559 (1873). 26 City of Waukegan v DeWolf. 258 Ill. 374 (1913). 27 City of Chicago v Law, 144 Ill. 569 (1893). 28 City of Waukegan v DeWolf, 258 Ill. 374 (1913); see, also City of Bloomington, v C. & A. 'R. R. Co.. 134 Ill. 451 (1890). "The cost of constructing a reservoir, of sinking a well, the erection of a stand pipe and the pumping works and buildings for the same, are not local improvements, but of general utility to the inhabitants, and must be paid for by general taxation. The laying of pipes for the conveyance of water along a particular street or streets is local to the particular street and of special benefit, and is a local improvement, and may be paid for by special assessment or special taxation." 30 And it has been held that the poles, wires and lamps in an electric light system are local improvements, but that the power house and generator engines are not.31 31 An act of the General Assembly which authorizes parks to levy a special tax on contiguous property for the maintenance and repair of boulevards and pleasure driveways is unconstitutional. "Original paving of a street brings the property bounding upon it into the market as building lots. Before that, it is a road, and not a street. It is therefore a local improvement, with benefits almost exclusively peculiar to the abutting property. Such a case is clearly within the principle of assessing the lots lying upon it but when the street is once opened and paved, thus assimilated with the rest of the city and made a part of it, all the particular benefits to the locality derived from the improvements have been received and enjoyed. Repairing streets is as much a part of the original duty of the municipality-for general good-as cleaning, watching and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments." 32 A municipality may not resort to special assessments or special taxation to defray the cost of sprinkling streets. "A local improvement is à public improvement which by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality. The only basis upon which either special assessments or special taxation can be sustained is, that from the proposed local improvement, the property subjected to the tax or assessment will be enhanced in value to the extent of the burthen imposed Used, as it is, in connection with special assessments, which are necessarily based upon the idea of equivalent benefits to the property owner, the idea of permanency in the improvement is necessarily involved, that is, the benefit must flow from the actual or presumptive betterment of the street, and must be of such character as to enhance the market value of the property." And, on the same theory, it has been held that the General Assembly cannot provide for the payment of the cost of exterminating noxious weeds by special assessments against the lands from which the weeds are removed.34 33 Municipalities that may be authorized to make local improvements by special assessments or special taxation. Section 9 of this article provides that "the General Assembly may 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." The enumeration of cities, towns and villages has been held to be an exclusion of all other municipalities. The General Assembly may confer the power to make local improvements by special assessments and special taxation only on the corporate authorities of cities, towns, and villages. In Updike v Wright (1876), it was held that drainage districts could not be given the power to levy special assessments. The first amendment to the present constitution (article 4, section 31), was 35 30 Hughes v City of Momence. 163 Ill. 535 (1896); see, also, Village of Morgan Park v Wiswall, 155 Ill. 262 (1895); O'Neil v People, 166 Ill. 561 (1897); Hewes v Glos. 170 Ill. 436 (1897); Harts v People, 171 III. 458 (1898). 31 Ewart v Village of Western Springs, 180 Ill. 318 (1899). 32 Crane V West Chicago Park Commissioners, 153 Ill. 348 (1894). 34 People v Board of Commissioners, 221 Ill. 493 (1906). 35 81 Ill. 49 (1876). 37 adopted (1878) for the express purpose of enabling drainage districts to impose special assessments. (For a statement as to the power of drainage districts to levy special assessments, see discussion article 4, section 31.) Counties and townships cannot be given the power to levy special assessments or special taxes for local improvements.36 Park districts, however, on the theory that park commissioners are the corporate authorities of the cities, towns and villages in which the park districts are located, may make local improvements by special assessments or by special taxation. And, while it is difficult to see how the park commissioners of a park district which embraces a part of a city and part of a township can be considered the corporate authorities of a city, town or village, the power of the General Assembly to authorize such a park district to levy special assessments has, nevertheless, been sustained. Only the corporate authorities of cities, towns and villages may levy special assessments or special taxes for local improvements. A township cannot do so. There may be some justification for holding that the park commissioners of a park district located wholly within one city or town, or located wholly within two or more cities or towns, are the corporate authorities for park purposes of the municipality or municipalities in which the park district is located. But how can it be said that the park commissioners of a park district located partly in a city and partly in a township are such corporate authorities, as under the constitution, may be given the authority to levy special assessments or special taxes for local improvements? If the commissioners are deemed the corporate authorities of the city, they are then permitted to exercise jurisdiction beyond the limits of the city. If they are considered the corporate authorities of the township, then the power to levy special assessments and special taxes is being exercised by the township, a municipality which, under the constitution, has no power to levy such assessments and taxes. (See discussion following subheading.) Corporate authorities. Only the corporate authorities of cities, towns and villages may levy special assessments and special taxes. Who are corporate authorities? With respect to the power to levy general taxes the corporate authorities of a municipality are persons who are directly elected by the people to be taxed or selected or appointed in some mode to which the people have 36 People v Board of Commissioners, 221 Ill. 493 (1906); Report Attorney General 1917-18, p. 1034. 37 Dunham v People, 96 Ill. 331 (1880); West Chicago Park Commissioners v W. U. Telegraph Co., 103 Ill. 33 (1882); West Chicago Park Commissioners v Sweet, 167 II. 326 (1897); West Chicago Park Commissioners v Farber, 171 Ill. 146 (1898). The basis of these decisions is found in the reasoning of the court in People v Salomon, 51 Ill. 37 (1869). which was decided prior to the adoption of the constitution of 1870. The constitution of 1848 (article 9, section 5), provided that the corporate authorities of counties, townships, school districts, cities, towns and villages could be vested with the power to levy taxes for corporate purposes. The court held that the enumeration of certain municipalities prevented the General Assembly from giving the power of levying taxes for corporate purposes to the corporate authorities of any municipality not inIcluded in the enumeration. The General Assembly passed an act establishing a park district in three adjoining towns. The park was to be under the control of a board of park commissioners. In the Salomon case the point was raised that these commissioners could not be given the power to levy taxes for park purposes because they were not the corporate authorities of a county, township, school district, city, town or village. The court took the view, however, that. while it was true that only the corporate authorities of counties, townships, school districts, cities, towns and villages could be given the power to levy taxes for corporate purposes the General Assembly, in the act under consideration, was not attempting to confer a taxing power on the park commissioners as the corporate authorities of the park district, but was conferring upon these commissioners as the corporate authorities for park purposes of the towns in which the park district was located, the power to levy taxes for park purposes. And so, under the constitution of 1870, park commissioners may levy special assessments and special taxes for local improvements not as the corporate authorities of a park district but as the corporate authorities for park purposes of the city, town or village in which the park district is located. assented. (See discussion preceding subheading "Corporate authorities"). The same rule applies as to the corporate authorities that may be empowered to levy special assessments and special taxes. They must be elected by the people to be assessed or taxed, or selected in a mode which has bee assented to by the people.99 (For a statement as to the corporate authorities of drainage districts, see discussion article 4, section 31, sub-heading "Corporate authorities"). Combination of methods to defray cost of local improvements. A municipality, under a proper delegation of legislative authority, may provide that the cost of a particular local improvement shall be met in part by general taxation and in part by special assessments or special taxation. But it cannot provide that a part of the cost shall be paid by special assessments and the remainder by special taxation. Either special assessments or special taxation may be combined with general taxation in one local improvement, but special assessments and special taxation cannot be so combined.40. Exemptions from special assessments and special taxation. (See discussion article 9, section 3, sub-heading "Special assessments and special taxation"). Section 10. The General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes, but shall require that all the taxable property within the limits of municipal corporations shall be taxed for the payment of debts contracted under authority of law, such taxes to be uniform in respect to persons and property, within the jurisdiction of the body imposing the same. Private property shall not be liable to be taken or sold for the payment of the corporate debts of a municipal corporation. (See discussion article 9, section 9, subheadings "Corporate authorities" and "Power of General Assembly to impose taxes on municipal corporations for corporate purposes.") Section 11. No person who is in default, as collector or custodian of money or property belonging to a municipal corporation shall be eligible to any office in or under such corporation. The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased or diminished during such term. (See discussion article 4, section 4; see, also, discussion article 4, section 21, subheading, "Municipal officers"). 39 Givins v City of Chicago, 188 I. 348 (1900). 40 Kuehner v City of Freeport, 143 Ill. 92 (1892); see also. Falch v People, 99 II. 137 (1881); City of Chicago v Brede, 218 Ill. 528 (1905). Section 12. No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes, previous to the incurring of such indebtedness. Any county, city, school district, or other municipal corporation, incurring any indebtedness as aforesaid, shall before, or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt, as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same. This section shall not be construed to prevent any county, city, township, school district, or other municipal corporation, from issuing their bonds in compliance with any vote of the people which may have been had prior to the adoption of this Constitution in pursuance of any law providing therefor. In general. The words "or other municipal corporation", as used in this section, have been held to include a village and a sanitary district.41 This section consists, primarily, of two restrictions upon the incurring of municipal indebtedness. It does not, except as suggested below, restrict the amount, rate or purpose of municipal taxation. "The fact that a municipal corporation is indebted up to the constitutional limit of five per cent does not prevent that municipality from levying taxes for any lawful purpose within the limits fixed by the laws governing such municipal corporations." It should be borne in mind, however, that taxes levied to pay the interest or principal on a municipal debt which is void because in excess of the five per cent limitation, are themselves void because levied for an unlawful purpose. To this extent, the section under consideration does indirectly restrict the levy and collection of municipal taxes. (See discussion subsequent subheadings, "What is a debt", and "Effect of exceeding five per cent limitation"). 1142 (As to the requirements of the second sentence of this section with reference to the levy and collection of annual taxes to meet an indebtedness, see discussion subsequent subheading, "Necessity for provision for annual tax"). Indebtedness authorized before adoption of constitution. The provisions of the last sentence of this section have been held to validate municipal bonds issued after the adoption of the constitution of 1870, in compliance with a vote had prior to that date, pursuant to a law providing therefor, even though, when the bonds were issued, the municipality was indebted beyond the five per cent limitation, and no provision had been made for the payment of the principal and interest, by an annual tax. In the case of Mason v City of Shawneetown, it appeared that the city charter, a special act of 1861, authorized the city to borrow money for the construction and maintenance of a levee. The city submitted the question of borrowing money for that purpose to the people in May, 1870, 41 Village of East Moline v Pope, 224 Ill. 386 (1906); Evans v Holman, 244 Ill. 596 (1910); Wilson v Board of Trustees, 133 Ill. 443 (1890); People v Bowman, 253 III. 234 (1911). 4 People v C. & T. Ry. Co. 223 Ill. 448 (1906); People v C. & A. Ry. Co. 253 I. 191 (1912). |