235 Ill. 358 | Ill. | 1908
delivered the opinion of the court:
The reasons urged by the plaintiffs in error for granting the relief prayed for are, that a contract had already been let for the improvement under the prior ordinance at a price several thousand dollars less than the second assessment; that the property owners were assessed to pay for the benefit of the properties owned by the Illinois Central Railroad Company and the Oakwood Cemetery Association, which were benefited but not assessed; that the improvement was put through by an alderman closely identified with the land department of the Illinois Central Railroad Company, who had bought the property of the railroad company; that the superintendent of special assessments made the assessment of benefits in bad faith and with the fixed purpose of not charging any part of the cost of the improvement against the city; that the board of local improvements assured the Monroe avenue property owners that all the other streets in the vicinity would be improved in the same way as rapidly as possible and thereby induced the Monroe avenue owners to make no objection to the assessment, but that the city changed the improvement so that the cost of paving the other streets was much less than the cost on Monroe avenue, and the other streets have so far been left in a condition unfit for use, so that the entire travel of that part of the city is thrown upon Monroe avenue, to the injury of the property owners; that the rights of way of steam and street railways were excepted from the improvement, and the paving of the right of way of the Illinois Central railroad was therefore a variance from the improvement for which the assessment was made; that the lowering of the grade was an unreasonable act of oppression and injurious to property owners, and that an accounting should be had as to the general benefit resulting to the city from the improvement and as to the value of the material of the former paving taken from the street, and the damages arising from the change of grade, and the excessive assessment for the benefit of the property of the railroad company and the cemetery association.
The Local Improvement act provides a remedy for all the grievances complained of in the bill, and no sufficient reason is shown by the plaintiffs in error for their failure to pursue such remedy or for a resort to a court of equity. The existence of the prior ordinance, the confirmation of the assessment and the letting of the contract were all matters of public record, of which the plaintiffs in error were charged with knowledge. It is to be presumed that the statutory notices were given in that proceeding and there is no allegation to the contrary..' If the former ordinance, and the proceedings under it, constituted a valid objection to proceedings under the present ordinance, the objection should have been made upon the application for confirmation of the assessment. It could not be made upon the application of the county collector for judgment of sale. (People v. Fuller, 204 Ill. 290.) Neither could it be made by a bill in equity for an injunction. The bill avers that the proceedings under the first ordinance were vacated, and there is no averment of any irregularity in the letting of the contract under the second ordinance. The first contract having been abandoned, together with all other proceedings under the first ordinance, has nothing to do with the second contract, which, so far as appears, was fairly let to the lowest bidder in strict conformity with the law.
If the assessment roll which is the subject of complaint in this case improperly failed to charge the city with any part of the cost of the improvement as a public benefit, or if it failed to charge any property benefited with its just proportion of the cost of the improvement, section 47 of the Local Improvement act makes provision for the correction of the errors and omissions and the just and equitable distribution of the cost of the improvement between the. public and private property and among the various parcels of property benefited. The plaintiffs in error should have presented these objections to the county court on the application for confirmation of the assessment roll.
The assurances of the board of local improvements in regard to the improvement of other streets in the same way as Monroe avenue and the failure of the city to improve such other streets in accordance with the assurances of the board, and the fact that by reason of such failure additional travel was forced upon Monroe avenue, with additional attendant noise, dust and inconvenience, to the injury of the property fronting on said avenue, do not afford grounds for equitable relief. The board of local improve-, ments is not the authority which decides upon the making of street improvements. That duty pertains to the city council. The board could not agree that any improvement should be made, for while it may recommend it cannot order an improvement. The city council is not required to malee the improvement which the board recommends, but whether any improvement at all shall be made is for the determination of the council. The plaintiffs in error knew that the promises of the board of local improvements were not binding- upon the city council, and they had no right to rely upon such promises. If they failed to oppose the confirmation of the assessment because of their reliance upon assurances of the board as to other improvements, they did so with full knowledge that such assurances imposed no obligation upon the city, that performance could not be enforced, and that a failure to comply with them would not invalidate the ordinance or the assessment.
.The change of the grade of the street, the paving of a part of the railroad company’s right of way excepted from the ordinance and the using of a part of the material with which the street had formerly been paved do not entitle the plaintiffs in error to an accounting. As to the last item, if the old pavement was of any value and was not considered in making the assessment, the objection should have been made on the application for confirmation of the assessment. As to the first item, it is not alleged that the improvement was not made at the grade established by the ordinance, and if the city council had no authority to establish that grade, or if the grade established injured the property of the plaintiffs in e/ror, those questions should also have been presented upon the application for confirmation of the assessment. As to the variance of the improvement from that authorized by the ordinance by reason of the paving of a part of the right of way of the railroad company which was excepted from the improvement, it is provided by section 84 of the Local Improvement act that upon the completion and acceptance of the work the board of local improvements shall certify the cost thereof to the court in which the assessment was confirmed, and if the total amount assessed exceeds the cost, alb of the excess shall be abated and the judgment reduced proportionately and credited pro rata under the direction of the court. Said section 84 also provides for a hearing after the filing of said certificate and after notice, to determine whether or not the improvement conforms substantially to the requirements’ of the original ordinance. Since there is no allegation to the contrary, it is presumed that such hearing was had. At such hearing it was competent for the plaintiffs in error to show that the cost of the improvement as certified should be reduced, by showing, if such was the fact, that the certificate included the paving of the right of way which was not included in the ordinance and for which the assessment was not made, and thereupon the court would have deducted the cost of the»paving not included in the ordinance and credited it pro rata upon the assessment. It was also competent for the plaintiffs in error to show, on such hearing, that the paving did not conform to the grade required by the ordinance, if such was the fact, and upon the court so finding it would have been the duty of the board of local improvements to procure completion of the improvement in substantial accordance with the ordinance.
The bill sets up no claim of which the plaintiffs in error might not have availed themselves at some stage of the assessment proceedings. This suit is substantially a collateral attack upon such proceedings. The aid of a court of equity can only be invoked in the absence of an adequate legal remedy. The collection of a special assessment can not be enjoined in favor of one who has had an opportunity to make his defense in the court in which the assessment proceedings were had. His failure to make his defense there affords no ground for an application to a court of equity to relieve him from the consequences of his neglect. Lyman v. City of Chicago, 211 Ill. 209; Sumner v. Village of Milford, 214 id. 388.
The' demurrer to the amended bill was properly sustained, and the-decree of the superior court will therefore be affirmed.
Decree affirmed.
