| Ill. | Apr 15, 1864
delivered the opinion of the Court:
This was an application for a judgment on an assessment roll against real estate in the city of Chicago. The assessment was made to extend Fourteenth street, from State street to Indiana avenue. It is urged that the assessment was void, for the want of proper notice to the owners of real estate upon which it was levied. It is provided by the 36th section, chapter 7, of the city charter, (Private Laws, 1863, p. 93,) that if, from any cause, the city shall fail to collect the assessment which may have been levied, either in whole or in part, and where the same has not been canceled by order of court, the common council may, at any time within five years after the confirmation of the original assessment, direct a new assessment to be made upon delinquent property for the amount of such deficiency, and interest thereon from the date of the original assessment. And it declares that it shall be made in the same manner as is prescribed for the first assessment.
The third section of chapter seven of the city charter regulates the mode in which the original assessment shall be made. It declares that in cases for the opening of any street, the application shall be made to the board of public works; or, 'if made to the common council, it shall be referred by them to the board. And upon receiving such application they are required to proceed to investigate the same, and if they determine such improvement to be necessary, they are required to report the same to the .common council, with an estimate of the expense thereof, and also a proper ordinance or order directing the work to be performed.
The fourth section requires them to furnish a plan of the proposed improvement, and whether real estate to be assessed will be benefited to the extent of the damages, costs and expenses necessary to be incurred thereby.
The fifth section declares, that when such an order shall be passed by the common council, the commissioners of the board of public works shall forthwith proceed to ascertain and assess the damages and compensation due for land appropriated for opening such street. Also, at the same time determine what estate will be benefited thereby, and assess the damages and costs of the proceeding by them deemed benefited, in proportion as nearly as may be done. The sixth section requires the commissioners to be sworn faithfully to discharge their duties. And it requires them to give six days’ notice, by publication in the corporation newspaper, of the time and place of their meeting for the purpose of making the assessment, in which they shall specify what such assessment is to be made for, and shall describe the land to be condemned.
The eighth section declares, that if the damage to any person shall be greater than the benefits received, or if the benefits be greater than the damages, the commissioners shall strike a balance. The thirteenth section requires that when completed, the commissioners shall file the assessment roll in the office of the city clerk, and notice given by them, for six days, by publication in the corporation newspaper, of the filing the same, and that at the next regular meeting of the common council after such notice is given they will apply for a confirmation of the assessment. It also provides that objections may be made before the common council, but they are required to be filed in writing. It authorizes that body to adjourn the hearing from time to time, to revise and correct the same, or to confirm or annul it and direct a new assessment.
An assessment was made under these provisions for the purpose of extending this street, but owing to the resistance of some of the property holders, a part of it was not collected. Proceedings were then instituted under the 36th section of chapter seven, to reassess the deficiency on the delinquent property, and it is upon this latter proceeding that the application was made in the court below for an order of sale. It will be observed that this section requires this second assessment to be made as near as may be in the manner prescribed for the first assessment. The commissioners reported to the common council the deficiency, with an order for a reassessment on the delinquent property, which was approved and passed by the common council. The commissioners then gave notice to all persons in interest, of the time and place of the intended assessment. After it was made, they published a notice that it had been completed, and that they would apply at the next regular meeting of the common council for a confirmation of the assessment. At that meeting it was confirmed.
To these last proceedings no exceptions are taken. But it is urged that on the first assessment the notice was given by the board of public works instead of the commissioners of public works. And that a notice was given by the board of public works that they would apply for its confirmation. It is obvious that this second proceeding was independent of and disconnected from the first proceeding. The application was made for an order for the reassessment which was passed. The required notices were given, and the assessment made and confirmed, precisely as was required by the law, so far as we can see, and as nearly in the manner required by the law in the first assessment as was practicable. We are therefore at a loss to perceive how the first assessment, or the notices then given, can in the slightest degree affect this proceeding. The question is not whether the first was legal, but was the latter ? No exceptions are urged to this, but to the first, and they are wholly unavailing.
It is again urged, that the Superior Court had decided the first assessment void, and refused a judgment to enforce that proceeding, and that the judgment was a bar to this application for an order of sale. This being a new proceeding, independent of, but growing out of the former, can in no manner be affected by it. And whether the first proceeding was valid or invalid, could not matter. This proceeding was designed to cure defects existing in the first assessment, and could only be tested by the law authorizing it to be levied. The judgment on the first assessment was no bar to this application.
We, for these reasons, are of the opinion that the court below erred, and the judgment must be reversed and the cause remanded.
Judgment reversed.