Grosse v. People ex rel. Ruch , 218 Ill. 342 ( 1905 )

Mr. Justice Scott

delivered the opinion of the court:

The only question arising upon the record and assignments of error in this case is, whether the assessments made by the drainage district upon the lands in question, while they were a part of the township school fund, were void.

It has been held by this court that the school section in each township, granted by the United States to the State for the use of the inhabitants of such township for the use of schools, so long as it remains a part of the school fund, is exempt from taxation and special assessment, and that this exemption extends to property exchanged for the school section or representing its proceeds. City of Chicago v. People, 80 Ill. 384; People v. Trustees of Schools, 118 id. 52; People v. City of Chicago, 216 id. 537.

This exemption is not placed upon any language of the statutes or the constitution expressly relieving such property from, taxation, but upon the ground that section 2 of article 8 of the constitution of 1870 prohibits the depletion of the fund, resulting from such grant, by taxation or special assessment; and plaintiffs in error contend that there is no reason why the constitutional provision does not equally protect property arising from other sources.

The section of the constitution referred to reads as follows: “All lands, moneys, or other property, donated, granted or received for schools, college, seminary or university purposes, and the proceeds thereof, shall be faithfully applied to the objects for which such gifts' or grants were made.”

From an inspection of this section it is apparent that it applies only to gifts or grants made prior to the adoption of the constitution of 1870. Its language plainly indicates that lands, money and other property had been theretofore donated, granted and received for schools, college, seminary ■ and university purposes, and directs that such gifts or grants shall be faithfully applied to the objects for which they were made; and when it is considered that the Federal government had, prior to the adoption of the constitution of 1870, granted section 16 in each township, or lands equivalent thereto, to the State for the use of the inhabitants of such township for the use of schools, and had also granted lands and donated funds to the State for the establishment and maintenance of a State college or university and for the founding and support of a State seminary, it becomes apparent that the section of the constitution had reference, primarily, to these gifts and grants from the Federal government. It manifestly does not extend to gifts or grants made subsequent to the adoption of the constitution, and since the record in this case does not show that the money loaned to Canniff was money received by the trustees prior to August 8, 1870, it will not be presumed to have been so received, for the reason that it was incumbent upon the plaintiffs in error to bring their property clearly within the provision under which they claimed it exempt from the assessments. In the matter of Swigert, 119 Ill. 83; McCullough v. Board of Review, 183 id. 373; In re Walker, 200 id. 566. .

It follows that the cases first above cited are not applicable to the case at bar, and that the property in question is not protected from special assessment by the constitutional provision above quoted.

Plaintiffs in error also urge that the lands were exempt under section 6 of article 12 of chapter 122, Hurd’s Revised Statutes of 1903, which provides that the funds derived from the sale of section 16, “or from the sale of any real estate or other property taken on any judgment or for any debt due to the principal of any township or county fund, and all other funds of every description,” shall constitute a part of the principal of the township or county fund, and no such part shall be distributed or expended for any purpose whatever, but shall be loaned, etc., and that the rents, interest, issues and profits arising from said principal shall be distributed as provided by law, etc.

That section does not in terms purport to. relieve the property therein mentioned from taxation or special assessment, and hence it will not be construed to have such effect. The law is well settled that an exemption cannot be raised by implication, but the intention to relieve from the burden of taxation must appear affirmatively. In re Walker, supra.

We therefore hold that the section of the statute referred to did not exempt the lands in question from the special assessments.

In the case of City of Chicago v. City of Chicago, 207 Ill. 37, this court held that school property in the city of Chicago, not being part of section 16 nor acquired with funds derived therefrom, was not exempt, either under the constitutional provision above quoted or under section 6 of article 12, supra, of the statutes, from a special assessment which was levied for the purpose of paving the street upon which the school property abutted. Part of that property was used for school purposes, part was vacant and the remainder was occupied by buildings from which rents and profits were received. It was there held that there was no distinction between the property used for school purposes and that which was vacant, so far as the liability for special assessment was concerned. There was no material distinction between that case and the one at bar.

The property here in question was liable to assessment for drainage purposes while constituting a part of the school fund, and the court below did not err in overruling the objections and entering a judgment and order of sale for the special assessments.

The judgment of the county court will be affirmed.

Judgment affirmed.