chise, the question of whether or not it was improperly exercising such franchise was one between it and the State. Any question of illegal combination or arrangement entered into by it that might affect the franchise could only be raised by the People in a proceeding instituted for that purpose."

It is further urged by appellees that no necessity exists for the condemnation of the property in question. Courts have the right to determine whether the use of private property proposed to be taken and appropriated is public in its nature, but when the use is public it has been held that the courts cannot inquire into the necessity or propriety of exercising the right of eminent domain. (Smith v. Drainage District, 229 Ill. 155; Chicago, Rock Island and Pacific Railroad Co. v. Town of Lake, 71 id. 333.) Courts will prevent an abuse of the exercise of the right of eminent domain, but where property is subject to condemnation, in the absence of a clear abuse of the petitioner's privilege, the court cannot deny the right to condemn upon the ground that to condemn is unnecessary or inexpedient, as the determination of that question devolves upon the legislative department of the government and not upon the judiciary. (Pittsburg, Ft. Wayne and Chicago Railway Co. v. Sanitary District of Chicago, 218 Ill. 286; Smith v. Chicago and Western Indiana Railroad Co. 105 id. 511; 2 Lewis on Eminent Domain,-3d ed.-secs. 602, 603.) A railroad company, acting in good faith, may under certain circumstances change the location of its depot. (Chicago and Eastern Illinois Railroad Co. v. People, 222 Ill. 396; Chicago and Northwestern Railway Co. v. Mechanic's Institute, 239 id. 197.) All the evidence introduced on this point tends to show that the business of appellant required additional depot, freight and switch track facilities for its business within the city of Decatur. There was no such abuse of power shown as to justify the interference of the

courts.

Appellees further contend that on the facts in this record the appellant is a mere lessee of the right of way of the Illinois Central between Maroa and Decatur Junction, and therefore cannot maintain condemnation proceedings. Counsel admit that this question is one of first impression in this State. The authorities cited in support of this contention are usually cases where one company has leased its franchise and all of its rights under its charter and the lessee has attempted to exercise the right of eminent domain granted by the charter of the lessor. (Western Union Telegraph Co. v. Pennsylvania Railroad Co. 195 U. S. 594; Mayor v. Railroad Co. 109 Mass. 115; 2 Elliott on Railroads,-2d ed.-sec. 958.) Those cases hold that while the legislature can authorize the transfer of this authority to the lessee, the lessee does not possess this power without clear legislative authority. (1 Lewis on Eminent Domain,—3d ed.-sec. 376.) In all of the cases relied upon by counsel for the appellees the only authority to condemn the lessees had was the authority that they obtained under the lease. Clearly, these cases are not in point on the question here. Appellant, by its charter, is granted full authority to condemn this property. Furthermore, it is not a lessee of the franchise rights and all charter powers of the Illinois Central Railroad Company. Between Maroa and Decatur Junction appellant has only a limited operating contract.. Appellant is not attempting to condemn as a lessee, but in its own right under its charter.

Other objections were urged by counsel for appellees in the trial court but are not urged here. We are not, therefore, required to consider or decide them.

From the record before us we conclude that appellant was authorized to condemn the property in question for depot and switch track purposes. The judgment of the county court must therefore be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

THE CITY OF CHICAGO, Defendant in Error, vs. ANDREW W. MORELL, Plaintiff in Error.

Opinion filed December 21, 1910.

I. CONSTITUTIONAL LAW-a penalty imposed for violating municipal ordinance is not a debt. An action to recover a penalty for violation of a municipal ordinance is a civil action, and, although commenced by affidavit and warrant, is not a criminal proceeding, and the penalty imposed for the violation of the ordinance is not a debt, within the meaning of the constitution.

2. SAME-Chicago wheel tax ordinance not unconstitutional be- . cause its violation may be punished by imprisonment. The Chicago wheel tax ordinance is not unconstitutional upon the ground that it is a revenue ordinance and imposes a penalty for its violation which may be enforced by arrest and imprisonment.

3. SAME-prosecution under the Chicago wheel tax ordinance is not a proceeding to collect the tax. The prosecution of a person for violating the Chicago wheel tax ordinance in running his automobile upon the streets without taking out a license, as therein required, is not a proceeding to collect the wheel tax, and the city has a right to enforce the ordinance against him by fine and imprisonment.

WRIT OF ERROR to the Municipal Court of Chicago; the Hon. JUDSON F. GOING, Judge, presiding.

KRUSE & PEDEN, and R. C. MERRICK, for plaintiff in

error:

The wheel tax ordinance of Chicago is a revenue measure and not a police regulation. Ayres v. Chicago, 239 Ill. 237; Harder's Storage Co. v. Chicago, 235 id. 58.

The tax imposed upon motor vehicles by the wheel tax ordinance, being based upon the number and kind of vehicles and not directed against the owners of vehicles as such, is a tax upon property, and should therefore be collected as are other property taxes. Harrisburg v. Railway Co. 4 Pa. Dist. 683; Millerstown v. Bell, 123 Pa. St. 151.

Where the law imposing a tax provides a special means of enforcing it the method so provided is generally exclu

sive, and if the only method adopted is illegal the law must fail, for the courts cannot substitute a different and legal method. Insurance Co. v. Minden, 51 Neb. 870; Rochester v. Gleichauf, 40 N. Y. Misc. 446; State v. Piazza, 66 Miss. 426; State v. Manz, 6 Cold. 557.

A tax or license fee imposed by an ordinance for revenue purposes, and not in the exercise of the police power, can be collected only as other taxes are,-by judgment, levy and sale. Such a tax or license cannot constitutionally be collected by fine or imprisonment. Const. of 1870, art. 9, secs. 1, 9; State v. Green, 27 Neb. 64; Magneau v. Fremont, 30 id. 843; Insurance Co. v. Minden, 51 id. 870; Templeton v. Tekemah, 32 id. 542; St. Louis v. Green, 6 Mo. App. 591; St. Louis v. Heinrich, id. 591; State v. Patamia, 34 La. Ann. 750; State v. Manessier, 32 id. 1308; Municipality v. Pance, 6 id. 237.

The Illinois constitution provides no means for the collection of revenue except the forfeiture and sale of property. The collection of revenue by arrest, fine and imprisonment is a deprivation of liberty without due process of law. Const. of 1870, art. 9, secs. 1, 2, 9, 10; art. 2, sec. 2; U. S. Const. 5th and 14th amendments.

Since the constitution of Illinois authorizes the collection of revenue only by proceedings against the property taxed, the wheel tax ordinance, which provides for criminal prosecution for failure to pay a purely revenue tax, denies to one class of property owners the equal protection of the laws, and also imposes a discriminatory tax upon citizens belonging to the same class as those not affected by said ordinance. U. S. Const. 14th amendment; Const. of 1870, art. 9, secs. I, 9.

EDWARD J. BRUNDAGE, and CLARENCE N. BOORD, (EDWIN H. CASSELS, of counsel,) for defendant in error:

The action in the court below was not an action to collect the license tax provided by the wheel tax ordinance.

It was an action to collect a penalty for a violation of the ordinance.

The enforcement of the payment of a fine or penalty by imprisonment is not an imprisonment for debt, within the meaning of section 12 of article 2 of our constitution. Kennedy v. People, 122 Ill. 649; Rich v. People, 66 id. 513; Rosenbloom v. State, 64 Neb. 342.

Where a municipal corporation is empowered by statute to impose a license tax, it lawfully may make the failure to pay the tax and take out a license subject to a fine or penalty. The payment of a judgment for such a fine or penalty entered by the court for violation of a license ordinance may be enforced by imprisonment. Rosenbloom v. State, 64 Neb. 342; St. Louis v. Sternberg, 69 Mo. 289; St. Louis v. Green, 70 id. 562; Johnson v. Mayor, 114 Ga. 426; Salt Lake City v. Christensen Co. 34 Utah, 38; Cooley on Taxation, (3d ed.) 848, 1151.

Mr. JUSTICE HAND delivered the opinion of the court:

The plaintiff in error, Andrew W. Morell, was convicted of a violation of the wheel tax ordinance of the city of Chicago in the municipal court of Chicago, and was fined $25 and costs and ordered committed to the house of correction until the fine and costs were paid, and he has sued out this writ of error to reverse said judgment.

The only question raised upon this record is the constitutionality of the wheel tax ordinance of the city of Chicago. The position of the plaintiff in error, as defined in his brief, is, that said ordinance is unconstitutional for the reason that it is a revenue ordinance and imposes a penalty for its violation which may be enforced by arrest and imprisonment, which, it is argued, amounts to the enforcement and collection of a tax,-which, it is said, is a debt,— by arrest and imprisonment.

In Harder's Fire Proof Storage and Van Co. v. City of Chicago, 235 Ill. 58, and in Ayres v. City of Chicago, 239