127 Ill. 359 | Ill. | 1889
This was an application by the city of Springfield to the county court for confirmation of the special assessment in a proceeding by the city to construct a sewer in Walnut street, in said city. The county court refused confirmation, and dismissed the petition, and the city appealed.
Two objections are urged tó the proceedings for special assessment, and which, it is said, render them invalid. As stated by counsel for appellees, the two points made against the validity of the proceedings, are: “First, that the case, as made in the county court, failed to show proper assessments;” and, “second, that the ordinance was void, because it did not sufficiently specify and describe the sewer proposed to be constructed.”
The assessment roll returned by the commissioners was improperly returned by them, as appeared in the caption thereof, as.their “assessment of a special tax,” etc. This was manifestly a clerical error, and after filing the roll in the county court, it was, by leave of the court, amended by the commissioners, so as to show it to be an assessment for special benefits, etc. The commissioners had properly certified the assessment, and the amendment of the caption, to make it conform to the fact, was entirely proper.
It is urged, however, that the assessment was not in proportion to the benefits accruing to the several lots from the public improvement proposed, but was made by the commissioners in proportion to the frontage of such lots upon the street in which the sewer was to be constructed. ' This contention arises from the fact that the commissioners, in their report, gave the frontage of each lot upon said street, and assessed the cost of building the sewer in front of the lots upon the same, respectively, and determining that the cost of constructing thé sewer at the street and alley intersections should be borne by the city. It was the duty of the commissioners to examine the locality where the proposed improvement was to be made, and each contiguous tract of land and lot affected thereby, determine the amount of special benefits accruing from such improvement, and apportion the cost thereof, not exceeding the amount of special benefit, upon the several lots, in the proportion that they were severally benefited. In proceedings for special assessment of contiguous property, no lot or tract of land can be assessed any greater sum than it is specially benefited by the proposed improvement. There must be assessed to each lot the special benefit it will derive from the improvement, and if a sufficient sum is not thereby raised to make the improvement, the residue must be paid out of the general funds of the municipality. A report, therefore, of commissioners, that they have assessed the expense of the improvement according to the frontage, without finding that the special benefits are in that proportion, would not be in compliance with the law. Cooley on Taxation, 454; City of Chicago v. Larned et al. 34 Ill. 203; City of Chicago v. Baer, 41 id. 310.
The facts, however, do not sustain the contention of counsel. The assessment was for special benefits accruing to each of the lots named in the assessment roll, from the proposed public improvement. The fact that in the report the commissioners gave the frontage of the lots upon the street, or that they assessed against each lot the exact cost of the sewer in front of the same, will not, of itself, vitiate the assessment. It would seem that the commissioners determined that the benefit to appellees’ lots was equal to the cost of the sewer in front of the same, and charged the amount thereof upon such lot. If so, it is impossible for us to say that the assessment was not fairly and impartially made for benefits accruing to said lots. "What basis for ascertaining benefits shall be adopted by the commissioners is not prescribed by the law. Ample provision is made for the correction of errors in the assessment, by the statute, (sec. 31, art. 9, of general Incorporation act,) and the county court was authorized to modify, alter, change or annul the assessment, and make all such orders as might be necessary to a just and true assessment of the benefits. (Ibid. sec. 33.) When the roll is corrected in the manner provided by statute, it is then the duty of the court to confirm the same by its order. There was no such error in the return of the assessment by the commissioners, as would authorize the dismissal of the proceedings in the county court.
In respect of the second point made, that the ordinance is void because it did not sufficiently specify and describe the sewer proposed to be constructed, it need only be said, that the same ordinance, in all essential particulars, was before this court in City of Springfield v. Mathus et al. 124 Ill. 90, and was there sustained. Indeed, a reading of the two ordinances will show them to be substantially identical. The reports of the committees appointed to estimate the cost of the improvement in the two cases, are also substantially the same. Every element here urged as wanting to the validity of this ordinance, was there insisted upon. No extended discussion of the point made will therefore be necessary or proper.
Eor the reasons given in the ease cited, the objection to the ordinance is held not to be well taken. It follows, as in that case, the order of the county court in this case must be reversed, and the cause remanded for further proceedings.
Order reversed.
