29 Ill. 31 | Ill. | 1862
It is urged, as grounds of reversal, that it fails to appear that the assessment was levied upon the lots of ground abutting upon the line of improvement. And the levy, as made, was not in proportion to the number of front feet, as required by the seventh section of the act amending the city charter. The assessment, returned to the common council by the commissioners, shows a valuation and gross assessment of benefits on the different lots, and it nowhere states that it is in proportion to the number of feet of any of the lots fronting the improvement. The number of front feet of the various lots is not given, nor is it stated that they adjoin or abut on the street proposed to be improved. That section has limited the cost of this character of improvement to the adjoining lots, and requires it to, be levied in proportion to the number of front feet of each adjoining lot. This act is the only warrant for the action of the commissioners, and in making an assessment they must conform to its requirements. It has provided that the assessment shall be made upon the lots which adjoin the street to be improved, and in proportion to the number of front feet of the lot. If made on other property, or on a different rule, it cannot be sustained, as the exercise of the power must strictly pursue the statutory authority. Rex v. Greek, 1 Cowp. 30; Gity of Chicago v. Rock Island R. R. Co., 20 Ill. 290. And it must appear, from the proceeding itself, to be sustained.
It appears from the assessment roll, that each owner was charged with the amount of benefits he would receive by reason of the improvement. Although the property seems to have been valued, the assessment seems to have no reference to valuation, but only proceeds upon the basis of benefits derived from the improvement.
It is urged, however, that by the twenty-sixth section of the act, the confirmation of the report of the commissioners shall be final and conclusive, except as therein provided. The act allows an appeal from the order of confirmation, and prescribes the questions which shall be tried upon the hearing of the appeal. If, in this case, it had appeared that the valuation had been made on the front feet of adjoining lots to the street to be improved, no matter- how unjust it might have been, the order confirming the report would have been conclusive, unless upon an appeal, prosecuted in the mode prescribed. But until the common council has acquired jurisdiction of the subject-matter, any order they might make would not be conclusive on any person. To acquire such a jurisdiction, it was necessary that the required notices should be given, and the commissioners proceed, in the mode prescribed by the statute, to make the assessment.
There can be no pretense that the commissioners had any jurisdiction to subject any property to this burthen, but such as abutted upon the street proposed to be improved. If such an attempt was made, it was unauthorized by the statute, to the same extent as if it had been situated beyond the limits of the city. They were only authorized to act upon adjoining property. And as the proceeding fails to show that this was property abutting upon the street proposed to be improved, their jurisdiction does not appear. And the council were as powerless to confirm as they were to assess upon property remote .from the improvement. This assessment, then, does not appear to have been authorized; and this objection was well taken, to prevent an order for its sale, to enforce this levy. And the judgment of the court below is reversed.
Judgment reversed.
