203 Ill. 451 | Ill. | 1903
delivered the opinion of the court:
It has been repeatedly decided by this court that the basis of every special assessment is a valid ordinance, and if the ordinance providing for a local improvement which is to be paid for by special assessment is void, the county court is without jurisdiction to confirm the assessment. City of Alton v. Middleton's Heirs, 158 Ill. 442; Culver v. People, 161 id. 89; People v. Hurford, 167 id. 226; Smith v. City of Chicago, 169 id. 257; Johnson v. People, 189 id. 83.
In McFarlane v. City of Chicago, 185 Ill. 242, it was held, under an ordinance requiring a railway company, as a condition to granting permission to lay tracks, to pay the cost of constructing a viaduct, with necessary approaches, and to keep the same in repair, that the railroad. company, and not the abutting owners, must bear the expense of paving said approaches, and that it was error to assess the abutting property owners for the paving of the said approaches. And in City of Chicago v. Nodeck, 202 Ill. 257, wherein the same ordinance which was passed upon in the McFarlane case was again before this court, it was held that the judgment of confirmation based thereon was void and could not be pleaded as res judicata to a subsequent special assessment for the improvement of the same property under a new ordinance, on the ground that the first ordinance did not confer jurisdiction upon the court to render the judgment of confirmation.
In McFarlane v. City of Chicago, supra, and City of Chicago v. Nodeck, supra, we are committed to the doctrine that this improvement ordinance is void. If the ordinance is void, then the county court was without jurisdiction to enter the order eliminating from the original estimate of the cost of the improvement the amount of the cost of paving the portion of the street occupied by said track, and to order the assessment re-cast after said amount had been eliminated, and then to confirm the assessment. A void special assessment ordinance cannot be made valid by an order of court. An ordinance can be amended only by the body which had power to pass it. The power to pass the ordinance rested with the city council, and not with the county court. Chicago and Northern Pacific Railroad Co. v. City of Chicago, 174 Ill. 439; Galt v. City of Chicago, 174 id. 605; City of Paxton v. Bogardus, 201 id. 628.
The judgment of the county court will be reversed and the cause remanded. Reversed and remanded.
