18 Ill. 276 | Ill. | 1857
The facts admitted by the respondent entitles the relator to a peremptory writ of mandamus, for the payment of the balance of damages awarded him, after deduction of the benefits.
Where a street has been ordered to be opened or extended, commissioners for the assessment of damages have been appointed, have made and reported an assessment, which has been accepted and confirmed; a warrant issued for the collection of the amounts assessed for payment of such damages, and such street ordered to be opened; the parties entitled to such damages for property taken, etc., are entitled to have and collect such damages as of debt, and will be entitled to a mandamus, to compel the respondent to proceed to collect and pay over the same. The People v. The Supervisor of Westchester, 4 Barb. S. C. R. 76; The People ex rel. Parrish v. The Supervisor of St. Lawrence, 5 Cow. R. 292; Johnson v. Supervisor of Herkimer Co., 19 John. R. 272; Treat et al. v. The Inhabitants of Middletown, 8 Conn. R. 243.
The supposed irregularities in the proceedings of the commissioners would not vitiate and avoid the assessment as against the city. Mor can she be heard to allege, on return to a mandamus, that the charges were exorbitant, or that the public square had been assessed for a share of the benefits, etc. The assessment is returnable before the common council, who are authorized to hear appeals from such assessment and report, and may, in case of appeal, or otherwise, in their discretion, revise and correct the assessment, and confirm and annul the same, and direct a new assessment to be made. The city is concluded by its own confirmation (City Charter Cap. 7, Sec. 7). The city may not be heard to object for reasons alone applicable to parties interested. She may hear them on appeal, but may not, after confirmation, etc., refuse to proceed, for grounds exclusively available to private persons. They had their remedy for any real or supposed grievance by appeal, and may have lost all redress by neglect to avail themselves of their proper remedy in due time.
The city cannot now, under the facts and circumstances shown, withhold the damages assessed, and the compensation due, for any supposed error alleged. Her remedy was by withholding a confirmation, and setting aside the assessments and report. Other parties have not complained, and she may not complain for them. The remedies given must be pursued, or parties may not be able collaterally to attack proceedings which they have neglected to question directly. Inglee v. Bosworth, 5 Pick. R. 500; Dillingham v. Snow et al., 5 Mass. R. 557; Hemingway v. Inhabitants of Machias, 33 Maine R. 445; Sandford v. Dick, et al., 15 Conn. R. 447; Williams v. Holden, 4 Wend. R. 223.
Mere mistakes or omissions in the assessment list of persons who make no complaint will not render the whole void, where there is no excess of jurisdiction. Ibid.
The assessment of public taxes, or special assessments for public improvements, upon the public property of the state, county or municipal corporations, is a mere question of policy. The power exists to make it bear its share of the one or the other. It may be exempted from the one and subjected to the other. Canal Trustees v. City of Chicago, 12 Ill. R. 405; Ross v. Mayor of New York, 3 Wend. R. 335.
The language authorizing an assessment on property for benefits from laying or extending streets (Charter Cap. 6, Sec. 2) is very broad and comprehensive, and no reason is apparent why the public square may not receive a due share of the benefit with any other realty on the same street. The corporation of the city or the county may, if not specially exempted, justly pay a part of the assessments proportionate to the benefits conferred by the improvements. Such mode of apportioning the burthen is very just and reasonable, for under it alone many tax payers will contribute a share for the benefits bestowed on their property in common, who, otherwise, would pay nothing, and yet enjoy the enhanced benefits resulting from the improvement.
I presume no question has ever been made as to a division of the expense for grading and paving the streets and sidewalks around the public square. Ror can I perceive any distinction between this improvement and that of benefits derived from opening or lengthening out streets upon the public square. The public convenience and advantage is as much promoted and improved by a way to the public square as around it, so far as a distinction of principle is involved, if not in degree. We have been referred to no special provision exempting it. We find none in the city charter, and can perceive none in general principles or authorities, for it is not a tax falling within the provisions of the revenue laws. 12 Ill. and 3 Wend., ubi supra.
A peremptory mandamus should, therefore, be awarded, compelling the city to proceed with the collection of the asses-: ment; for section 52 of the amended charter of. February 16, 1857, authorizes special warrants forthwith for the collection of special assessments, although no collection can be enforced by judgment against the land itself and judicial sale before the first Tuesday in January, as provided in sections 40 and 51.
Where personal property may be found, no necessity will arise for resort to the court for judgment against the lands or lots assessed (Charter Cap. 8, Sec. 4), for a nen is created upon the personalty from the delivery of the warrant to the collector. So the full assessments may be completed without resort to the courts, in case personal property can be found.
Peremptory mandamus a/wa/rded.