# Chicago v. Sheldon

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United States Supreme Court
76 U.S. 50
Chicago v. Sheldon
In error to the Circuit Court for the Northern District of Illinois; the case being thus:
The constitution of Illinois ordains that taxes shall be levied so that each person shall pay in proportion to the value of his property; and that where corporate authorities of counties, cities, &c., are authorized to levy and collect taxes for corporate purposes, the taxes shall be uniform in respect to persons and property.
With those provisions in force, as fundamental law, the legislature of the State, in February, 1859, authorized the North Chicago City Railway Company to construct and operate a single or double track of a horse railway on certain streets of the city, 'in such manner and upon such terms and conditions, and with such rights and privileges as the said common council may, by contract with said parties, prescribe.'
On the 23d May, of the same year, the common council passed an ordinance by which they granted to the company permission to lay, for twenty-five years, a single or double track of railway on certain streets of the city, upon certain conditions prescribed; these conditions relating chiefly to the sort of motive power, the purposes for which the railway was to be used, the style and class of car, the sort of track and degree of its elevation, and the rates of fare. Then followed a section thus:
'The said company shall, as respects the grading, paving, macadamizing, filling, or planking of the streets, or parts of the streets, upon which they shall construct their said railways, or any of them, keep eight feet in width along the line of said railway on all the streets wherever one track is constructed, and sixteen feet in width along the line of said railway where two tracks are constructed, in good repair and condition during all the time to which the privileges hereby granted to said company shall extend, in accordance with whatever order or regulation respecting the ordinary repairs thereof may be adopted by the common council of said city.'
After this contract was made, and carried into execution by the railway company, and up to the year 1866, the common council passed several ordinances for the improvement of some of the streets occupied by the company, thereby providing for curbing them with curbstone, grading and paving them with wooden blocks, known as the Nicholson pavement. Under none of these, however, was the railway property of the street railway corporation assessed, except under one passed in the year last named. In that year the proprietors of certain lots fronting on streets where the railway was laid, refused to pay the assessments made on them, upon the ground that the railroad property ought to be assessed. The question between these proprietors of lots and the city was taken to the Supreme Court of the State, in the case of the City of Chicago v. Baer, where it was held (the previous case of Chicago v. Larned, being considered as in principle asserting that doctrine), that the legislature could not constitutionally grant power to the city to make such a contract as had been here granted to the railway company, that it was void, and that, as a consequence, the city was bound to assess the railroad property. A special tax or assessment of $28,677 was now accordingly imposed upon the property of the railway company, and the collection being treatened, one Sheldon, a large stockholder in the company-the company itself having declined to act-filed a bill in the court below to enjoin the collection, and the court enjoined it accordingly. From that decree the city of Chicago brought the case here, the main question being whether under their contract to keep the road for a certain number of feet 'in good condition and repair,' the company could be made to pay for what was a new curbing, grading, and paving, altogether, there being also some minor questions as to the effect of the decisions already mentioned.
To complete the history of the matter in hand, a fact somewhat collateral to it should be mentioned. It is that in 1864, under the authority of the charter of the railway company, the common council entered into another contract with it in respect to laying tracks in other streets. The grant in this new case was made, 'subject to all the restrictions and conditions, rights and privileges in the previous ordinance of the 23d of May, 1859, to the same company, except as herein otherwise provided.' The fifth section provided, as in the first contract, for keeping the eight and sixteen feet of the street in good condition and repair, but it provided further, and in addition, that, when any new improvement, paving, &c., should be ordered by the common council in any of the streets, the railway company should make the improvement the width of the eight or sixteen feet, as the case might be.
Mr. Tuley, for the city, argued—
That a party, and especially a monopoly, setting up exemption from city assessment, should show its privilege under an express contract; such exemption being against common rights, and not to be favored; that, plainly, no such exemption was contracted for here.
That as the Supreme Court of Illinois had jurisdiction of the parties, and had power to decide the subject-matter in controversy in the case of Chicago v. Baer, that decision was final and conclusive; the decision there not coming before this court on writ of error, as required by the twenty-fifth section of the Judiciary Act, if it was to be re-examined; and it being the established doctrine of this court that it will adopt and follow the decisions of the State courts in the construction of their own constitution and statutes, when that construction has been settled by the decisions of its highest judicial tribunal.
That if any prior decisions appeared to authorize the legislature to make contracts commuting the right of specific taxes or assessments, the case just named and that of Chicago v. Larned, had essentially modified them.
That the legislature could not authorize the city of Chicago, and did not mean to authorize it, to make a valid contract by which the railway company would be exempted from the payment of its portion for street improvements, in proportion to the benefits received; which was what the railway corporation did, in fact, pretend was done by the contract set up.
Mr. Justice NELSON delivered the opinion of the court.

## Notes

* ↑ 41 Illinois, 306.
* ↑ 34 Id. 265.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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