26 Ill. 351 | Ill. | 1861
The first objection urged is, that the law authorizing the city to levy an assessment, to make compensation for injury sustained by opening a street, is repugnant to our constitution. The provisions of that instrument, which declare and regulate the taxing power, are referred to as sustaining this position. In answer to the objection it is enough to say, that it is the established doctrine of this court, that assessments of this character are not taxes. It is not, therefore, embraced in or regulated by the provisions of the constitution, to which reference has been made. The constitution has provided that private property shall not be appropriated to public use, without just compensation being made to the owner. Under this provision, when it becomes necessary to appropriate private property to public use, by the opening, widening, or extension of a street in a town or city, the owner whose property is thus appropriated must have just compensation made to him, by the public at large, by the city, or by the persons deriving a pecuniary benefit from the improvement. That the legislature may require compensation to be made in either of these modes, we conceive there can be no question.
Where an improvement of this character is made, the adjacent real estate is thereby enhanced in value, unless it be the portions through or over which the street passes, which may sustain injury, for which the owners must be compensated. There can, it seems to us, be no more just and reasonable mode of making this compensation than that which the legislature has adopted, by assessing it upon those who receive a direct benefit from the improvement, in the enhanced value of their real estate, over and above any injury they may thereby sustain. And to ascertain and fix the amount that each person deriving benefit by the improvement shall contribute, to compensate for the loss sustained by those who are injured, a disinterested tribunal is required to appoint competent and disinterested persons, who, under oath, ascertain and report, both the amount of the injury sustained and the benefit derived by each person. This is fair, just, and in all respects reasonable.
The right of all parties not to be burthened with an undue proportion of the expenses is secured by the act. If dissatisfied with the assessment, any person feeling himself injured, may attend and show the fact, and prevent a confirmation of the commissioners’ report, and if dissatisfied with the action of th$ court, he may appeal or prosecute error to this court, to reversé' the order of confirmation, and judgment on the Assessment. (Scates’ Comp. 1226, sec. 3.) This affords all parties ample means of being fully heard, and of having any error horpecteá. The law also requires a notice to be given of the ;:tlme and place of the assessment, when and where all parties in interest may appear and be heard before the commissioners. Again, a further notice is required of the time and court at which application will be made for a confirmation, and judgment on the assessment. If the latter of these notices is not given, the judgment will be void for want of jurisdiction in the court to act, and a sale under such a judgment will confer no title to real estate.
It is a rule of uniform application, that where a party has a complete remedy at law, and, having the opportunity, slumbers upon his right, and fails to insist upon it, a court of equity will not afford relief. In this case, defendant in error, on the applition for judgment of confirmation, and for a sale of his property, in the court below, interposed no defense, but permitted judgment to be rendered against him by default. He having had the notice required by the statute, and failing to appear and interpose Ms defense, which could have been made on that trial, cannot be heard to insist upon it in a court of equity. His defense, if he had any, was cognizable in a court of law, and having had'an opportunity to interpose it in that forum, equity has no power to afford relief.
The city had the right under their charter to extend the street, ' to have the benefits and damages assessed, and this property was liable to the burthen. And this proceeding is so far in the nature of a tax, that when those facts exist, a court of equity will not interpose to restrain the collection of such an assessment. McBride v. The City of Chicago, 22 Ill. 574. The decree of the court below must, therefore, be reversed, and the bill dismissed.
Decree reversed.
