| Ill. | Jan 20, 1896
delivered the opinion of the court:
This court has held in numerous cases that the owner of property specially assessed for a local improvement cannot, when application is made for confirmation of the assessment, interpose the objection that the municipal corporation has not acquired title to the ground or land upon which the improvement has been or is to be made. Village of Hyde Park v. Borden, 94 Ill. 26" date_filed="1879-09-15" court="Ill." case_name="Village of Hyde Park v. Borden">94 Ill. 26; Holmes v. Village of Hyde Park, 121 id. 128; Hunerberg v. Village of Hyde Park, 130 id. 156; Leman v. City of Lake View, 131 id. 388; Goodwillie v. City of Lake View, 137 id. 51; Burhans v. Village of Norwood Park, 138 id. 147.
It is claimed by counsel for appellee, that upon an application of the county collector for judgment and an order of sale in the matter of a special assessment, the only questions that a court can try are those of jurisdiction and delinquency. On the other hand, counsel for appellant contend that, under the law as it now stands, everything which shows that a special assessment ought not to be collected, and which, by reason of the statute and the decisions of the courts, cannot be raised or heard at the time of the application for judgment of confirmation, can be urged as a defense upon the application of the county collector for judgment of sale, and proper relief granted by the court upon such application.
In regard to the return made by the collector when applying for judgment of sale, it is provided in the next to the last sentence of section 39, article 9, chapter 24, of the Revised Statutes, that “said report, when so made, shall be prima facie evidence that all the forms and requirements of the law in relation to making said return have been complied with, and that the special assessments mentioned in said report are due and unpaid.” And the last clause in the section reads thus: “And upon the application for judgment upon such assessment no defense or objection shall be made or heard which might have been interposed in the proceeding for the making of such assessment or the application for the confirmation thereof.” The expression “prima facie evidence,” in the first sentence, implies, ex vi termini, that the case made by the report may be rebutted, and it seems to be the necessary implication from and meaning of the last clause of the section, that any valid and lawful objection or defense there may be against the collection of the assessment, which could not have been interposed at the time of making the assessment or upon the application for confirmation thereof, may be availed of when the collector applies .for an order of sale. Besides this, section 44 of the same article and chapter of the statute provides that the general revenue laws of this State, .in reference to proceedings to recover judgments for delinquent taxes and the sale of property thereon, shall be applicable to proceedings to collect special assessments. And section 191 of the Revenue law provides that when the county collector makes an application for an order of sale for delinquent taxes, “if defense (specifying, in writing, the particular cause of objection,) be offered by any person interested in any of said lands or lots to the entry of judgment against the same, the court shall hear and determine the matter in a summary manner, without pleadings, and shall pronounce judgment as the right of the case may be.”
In cases which have arisen under prior statutes in regard to special assessments, where provision was made that the owner of the land assessed might make defense, this court uniformly held that any defense might be made which would show that the assessment ought not to-be collected, and in several of these cases the court used the strong expression that “less than this would be but a mockery of justice.” (Pease v. City of Chicago, 21 Ill. 500" date_filed="1859-04-15" court="Ill." case_name="Pease v. City of Chicago">21 Ill. 500; City of Chicago v. Burtice, 24 id. 489; Foss v. City of Chicago, 56 id. 354; Creote v. City of Chicago, id. 422.) There is a marked difference between the law as it stood at the time of these decisions and as it now stands, in this: that under the statute now in force, as we have already seen, no defense or objection can be made or heard, when the county collector applies for judgment, that could have been made or heard in the proceeding for the making of the assessment or at the time of the confirmation thereof. But, as we have also seen, a defense that the city or village has not acquired title to the premises on which the improvement is, or is to be, located, cannot be made or heard in the proceeding for confirmation.
It is claimed by appellee that in case of an objection such as appellant here urges, the remedy, if one exists, is by bill in chancery, and Holmes v. Village of Hyde Park, supra, Goodwillie v. Village of Lake View, supra, and Burhans v. Village of Norwood Park, supra, are cited as authorities in that behalf. Those were all cases of applications for judgments of confirmation—not applications by county collectors for orders of sale. It is strongly intimated in those cases that where the municipal corporation cannot or will not acquire title, and the assessment is or will be expended without corresponding benefit, the owner of the property assessed is entitled to relief. It was held in each case, however, that that was not a matter proper for consideration in the application for confirmation of the assessment made by the commissioners, and a further intimation was made, in announcing one or more of these decisions, that in a proper case a court of equity would afford relief. But is the case before us a proper case for a bill in chancery? Clearly not, if there is an adequate remedy at law. Here, at the time appellant filed his objections in the county court, there, of course, had not been judgment for the sale of his lots, and the statute, and the law as announced in our former decisions, gave him an ample remedy, by way of objection or defense, to the application of the county collector for judgment and order of sale. In City of Bloomington v. Blodgett, 24 Ill. App. 650" date_filed="1887-02-17" court="Ill. App. Ct." case_name="City of Bloomington v. Blodgett">24 Ill. App. 650, it was held by the Appellate Court for the Third District that if it is clearly and certainly known, from letting the contract for the proposed work or otherwise, that there is an excessive levy, then there is a legal defense, pro tanto, as to such excess, which should not be collected, and that such defense may be made in the proceeding by the collector for judgment under the last clause of section 39 of article 9 of the Cities and Villages act, and that prior to the rendition of final judgment of sale there is a complete remedy at law, and the owner of the property assessed has no standing in a court of equity. That decision, as we think, announces sound doctrine.
In our opinion, however, the facts that appear in the stipulation here in evidence do not make out a defense against the collection of the assessment. The report returned by the collector made out a prima facie case that the special assessment levied on appellant’s lot was due and unpaid. The burden of establishing a defense was imposed upon appellant. This he did not do. A sidewalk was in fact built by the city as required by the ordinance, -and appellant’s premises have all the benefits and advantages of such sidewalk. Appellant and all the other lot owners whose property was assessed for the construction of the sidewalk have and enjoy the improver ment that their property was assessed to pay for, and neither he nor they can justly claim to be relieved from payment of the benefits assessed against such property. Appellant has received full consideration for the assessment levied on his lot, and the question whether he has received, or is entitled to receive, compensation for the strip of ground upon which the sidewalk is placed is not involved in this litigation. If he is entitled to compensation the law will afford him a remedy.
There being no error in the record the order and judgment of the county court are affirmed.
Judgment affirmed.