22 Ill. 566 | Ill. | 1859
We are of opinion that the court had authority to continue the case under advisement, and render a judgment at a subsequent term, the same as any other case within its general jurisdiction.
The first section of the seventh chapter of the City Charter authorized the Common Council to cause this improvement to be made. The second section declares that the expenses of the improvement with the costs of the proceedings therein, shall be assessed upon the property benefited thereby. The third section says, “ The amount to be assessed for any such improvement * * shall be determined by the Common Council.” It is now objected that the Common Council levied an assessment for too much. Under the direction of the city authorities, the engineer made a specification of the work, and an estimate of the expense, in which he included an estimate of seventy-five dollars for engineering and superintendence, and one hundred and fifty dollars for collecting. For the amount of the engineer’s estimate including these items, this assessment was levied, and because these items were included, it is insisted that the assessment was illegal, because they were for services to be performed by salaried officers of the corporation. If these were to be a part of the expenses of the improvement or the costs consequent upon the proceeding, then the law expressly declares, that they are to be included in the assessment. That the expense of engineering and superintending is a part of the indispensable expense of the improvement, as much as the expense of breaking the stone, or hauling the material, would seem to require no argument to prove, and it was immaterial to the owners of the property, whether the corporation employed an engineer for the particular work and paid him for that alone, as they had an undoubted right to do, or employed an engineer by the year and directed him to attend to this and other work. It was no less a part of the expense of the improvement, in the one case than in the other. It was an indisputable expense, and properly included in the estimate. So also of the cost of collecting the assessment. It seems difficult to discuss a point which appears so self evident. There must be room for argument before a sensible argument can be made. Surely the assessment would not collect itself, or at least the Common Council must have had remarkable confidence in the ability and punctuality of all the property holders, to have been justified in omitting in their estimate, this expense. There is, however, a fatal defect in this assessment, which we should not regret to get over, could it be done consistently with the principles of law. In the assessment roll are two columns, one headed “ valuation,” and the other “ assessment,” in each of which, certain figures are set down. The last column is footed up thus, “ $20,814 00,” and between the 4 and the next to the last 0 is a red line drawn, which may be fairly understood to mean twenty thousand eight hundred and fourteen dollars and no cents, and when the footing at the bottom of the column is found to be the sum of all the figures in the column above, we are reasonably informed that the figures above are designed for dollars and cents, although there is nothing in the column above to indicate what those figures were intended to stand for. We are disposed to embrace anything, which can, by any reasonable intendment, inform us of the meaning of the figures set down in the assessment. But if there be nothing to indicate the meaning of the figures, then we are left to the merest conjecture. No suspicion, no mere conjecture without a particle of proof to warrant them, no matter how violent they may be, in any well-regulated government, has ever been held sufficient by its legal tribunals, to warrant a condemnation ; and we hope to be the last to depart from a rule, upon the inviolability of which the life, the liberty and the property of every member of the community depends. The column headed valuation, is filled with figures—nothing else. There is no word, mark or character, attached to or connected with any of these figures, showing what they were designed to represent. There is no proof in this case, showing what was the valuation placed upon any lot, in this assessment. If we adhere to the decision made at the last term, in the case of Lawrence v. Fast, 20 Ill. 340, this must be held to be a fatal defect in the assessment. We have seen no reason to doubt the correctness of the views there expressed, and have no inclination to depart from them. The law will not authorize this or any other court, to assume any fact to exist without the least particle of proof, either direct or circumstantial. But we do not propose to renew the discussion of this point. We see no way to avoid a new assessment, to compel the owners of the property benefited by this improvement who have not paid their proportion of the expense, to do so, unless this defect can be cured by further proof.
The judgment must be reversed and cause remanded.
Judgment reversed.
