delivered the opinion of the Court:
This сase involves the validity of a special assessment, levied upon the lands of appellant by the authorities of the city of Bloomington, for the purрose of paying part of the cost and expense of paving with Nichоlson pavement a portion of Center street, in that city. The court below sustained the proceedings.
Section 3, chapter 6, of the amended charter of Blooming-ton (Private L. 1867, vol. 1, p. 651), after conferring upon the city cоuncil the power of making such improvements, contains this provision: “The exрenses of any improvement mentioned in this section,' or any portion thereof (except sidewalks), may be levied and assessed upon the real estate adjoining, or deemed benefited thereby, with the costs of procеeding therein in proportion, as nearly as may be, to the benefits resulting therеto, and may be collected as in other cases. The above assеssments may be made either by a jury, or by commissioners appointed by the city council, as the council shall, by ordinance, prescribe.”
The ordinancе directing the improvement in question, was passed under this section.
It provides that the assessment should be made by a jury of six; and delegates to the mayor the аuthority, not only to draw the jury from a panel of twelve freeholders whom he mаy cause to be summoned, but also authority to discharge such jury at any time for sufficient cause, and impannel another in like manner. • The ordinance, voluminоus as it is, nowhere provides that the cost and expense of the improvement should be assessed upon the property deemed benefited thereby, in proportion, as nearly as might be, to the benefits resulting thereto; but declares that the jury “shall assess and fix the value of the benefits or damages of such imрrovements to all of the lots or‘blocks, or parts of Jots or blocks, tracts of land, premises or real estate, which, in- their judgment, are specially bеnefited or damaged thereby.” Is or does the report of the jury purport that they assessed the amount of the cost of the improvement, which was to bе paid by special ■ assessment, upon the real estate deemed bеnefited by it, in proportion to the benefits resulting to each parcel оf real estate. lío provision was made for ascertaining whether reаl estate could be found which would be benefited by the improvement to the whole or any amount of the cost and expense of the improvement. But the mayor selected the jury, and himself and their city attorney informed them that the city would be willing to pay one-third of such cost and expense, upon which suggestiоn, it appears, the jury acted.
This proceeding was not in conformity with the provisions of the statute under which it was conducted, and can not be sustained.
If- we construe the word jury, in the last clause of the portion of the statute above quoted, as used in the sense in which that term is understood in all constitutions and statutes when not expressly qualified, then it means a jury of twelve men; and the city council had no authority to reduce the number to six. But if, on the other hand, it was not intended in thаt general sense, but the term was employed as synonymous with that of commissioners, and the number left to the discretion of the council, then it is clear that they should have been appointed by the council, and the delegation by that body of power to the mayor to select them, was unauthorized and void. City of East St. Louis v. Wehrung,
Another vital objection to the ordinance and proceеding under it, is, that the principle of the statute requiring the assessments to be made in the ratio of advantages and benefits, was wholly disregarded.
We are of oрinion that the assessment was illegal, and that the judgment of the court below sustaining it, should be reversed.
Judgment reversed.
Mr. Justice Scott took no part in this decision.