Enos v. City of Springfield

Mr. Justice Craig delivered the opinion of the Court: This is a writ of error to reverse a judgment of the county court of Sangamon county, confirming a special tax assessed by three commissioners, for the purpose of improving certain streets in Springfield. Upon the return of the assessment roll, plaintiffs in error appeared in the county court and filed numerous objections, all of which were overruled. It is impossible to tell from the abstract filed in this case, the nature of the action or the character of the judgment,— indeed, it contains nothing from which an intelligent conclusion can be reached as to a proper decision of the case. Upon an examination, however, of the record, it appears that the city council of Springfield, on the 23d day of April, 1883, passed an ordinance providing that certain streets in the city should be paved; that the cost of the improvement, except the street and alley intersections and crossings, should be paid by special taxation upon property touching or abutting on either side of said streets, in proportion to the frontage thereof upon the streets. The city council, by the ordinance, appointed three commissioners to make an estimate of the cost of the improvement. These commissioners, on the 7th day of May, 1883, made a. report of the estimate of the cost of the improvement, which was duly approved by the city council. A petition was then filed in the county court, which contained a copy of the ordinance, and also a copy of the report of the commissioners showing the cost of the proposed improvement, and prayed that the cost of the improvement might be assessed in the manner provided by law. The court, upon an examination of the petition, ordinance and report of the estimated cost, appointed three commissioners to assess the cost of the improvement by special taxation. The commissioners, under the order, proceeded and assessed a special tax, equal in amount to the cost of the improvement, upon the lots and lands abutting on either side of the streets, in proportion to the frontage of said lots and lands upon the streets. The assessment roll was returned to the court, and upon the hearing all the objections interposed were overruled, and the assessment as made and returned was confirmed. Numerous objections were filed in the county court to the proceeding, but we do not understand that all of them are relied upon here,—indeed, but a few of them have been urged on the - argument, and they will be considered. Section 132, chapter 24, of article 9, of the Be vised Statutes of 1874, page 234, provides: “When said ordinance under which said local improvement shall be ordered, shall provide that such improvement shall be made by special taxation of contiguous property, the same shall be levied, ■assessed and collected in the way provided in the sections of this act providing for the mode of making, levying, assessing and collecting special assessments.” Now, it is urged that the assessment was not made in conformity with the mode of making, levying and assessing special assessments, and hence its illegality. Section 116 of the same statute provides: “That the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment, or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.” It is plain if the mode of procedure is to be the same where the city proceeds by special taxation as it is where the city authorities proceed by special assessment, that part of the statute which confers the power to resort to special taxation is rendered nugatory, and can have no force or effect whatever in the statute. This certainly was never contemplated. But the object of the legislature was to provide two modes,—one by special assessment, the other by special taxation of contiguous property,;— and the corporate authorities óf the city or village might determine by ordinance which mode should be adopted. The language of section 132 is not to receive a literal construction, but in determining its object and meaning it must be considered in connection with the constitution, which authorizes the General Assembly to vest corporate authorities of cities, towns and villages with power to make local improvements by special assessments or by special taxation of contiguous property, and also in connection with the other sections of article 9, of chapter 24; and when so considered, in view of the fact that the two distinct systems have been provided for, it is manifest that section 132 is to be understood as requiring only such portions of the statute in regard to special assessments to be followed as may be consistent with a proper exercise of the power of special taxation. Section 139, which provides for ascertaining benefits on special assessment proceedings, has no bearing whatever in a proceeding by special taxation. “Special taxation, as spoken of in the constitution, is based upon the supposed benefit to the contiguous property, and differs from special assessment only in the mode of ascertaining the benefits. In special taxation the imposition of the tax is of itself a determination that the benefits to the contiguous property will be as great as the burden imposed, while in the case of. special assessments the property to be benefited must be ascertained by a careful investigation, and the burdens distributed according to carefully ascertained proportion, in which each part will be beneficially affected.” Craw v. Village of Tolono, 96 Ill. 256. See, also, White v. The People, 94 Ill. 607, where it is said: “The objection that the special tax here exceeds the benefits to the lot, implies that the only mode of making the improvement is by special assessment, whereas the broad power is given under the constitution to make it either by special assessment, or by special taxation of contiguous property, or otherwise. * * ■ * This proceeding is in the special taxation of contiguous property; and in the adoption of that mode there is no requirement of benefits received, and no respect thereto further than may be had by the city council in determining upon which particular one of the several modes of special taxation of contiguous property open to them shall be resorted to.” Here the ordinance was passed providing for the improvement, and that it should be made by special taxation, and, as required by section 135, three persons were appointed to make an estimate of the cost of the improvement. Upon receiving and approving the report, the city council, as required by section 136, ordered a petition to be filed in the county court that the cost of the improvement might be assessed.' The petition was filed as required by section 137, and the court appointed three commissioners, •who made the assessment, and returned an assessment roll, which, so far as we are able to perceive, conforms to the requirements of the law. The third section of the ordinance provided, in substance, that a stone curbing should be provided on each side of the pavement laid on the street, and it is contended that the paving of the streets and furnishing the stone curbing are separate and distinct improvements, which can not be united in one proceeding, and is condemned by Weckler v. City of Chicago, 61 Ill. 145. We do not think the case cited has any bearing here. It is manifest that the paving and curbing constitute but one improvement. The curbing is placed at the side of the pavement for its support, and may be regarded as a part of the pavement. Objection is also made to the proceedings because the cost of the improvement, under the terms of the ordinance, was assessed upon the lots abutting upon the streets in proportion to the frontage of the lots upon the streets. Section 9, of article 9, of our constitution, provides: “The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, or by special taxation of contiguous property, or otherwise.” In pursuance of this provision of the constitution the legislature adopted article 9, of chapter 24, the first section^ of which declares: “That the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment, or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall, by ordinance, prescribe.” The constitution and the section of the statute are silent on the point as to manner of the assessment,—whether it shall be in proportion of the frontage of the lot, or otherwise. But power is conferred on the city to make the assessment, and it is a matter within the discretion of the corporate authorities to determine for themselves, and any mode they may adopt to carry out the power conferred will be sustained,' so long as they do not violate the constitution or the statute. In White v. The People, 94 Ill. 607, where a special tax was assessed according to frontage, it is said: “Whether or not the special tax exceeds the actual benefit to the lot is not material. It may be supposed to be based on a presumed equivalent. The city council have determined the frontage to be the proper measure of probable benefits. That is generally considered as a very reasonable measure of benefits in the ease of such an improvement, and if it does not in fact, in the present case, represent the actual benefits, it is enough that the city council have deemed it the proper rule to apply. ” It is true that this decision was made under a proceeding which arose under the act of 1875, in relation to sidewalks, which expressly authorizes an assessment per frontage, but we do not regard that as important. Complaint is also made that plaintiffs in error have been taxed with the costs of making and levying the assessment. This is authorized by section 135 of the act under which the proceedings were had. Another objection interposed to the proceedings is, that the ordinance under which the assessment was made was not published. The charter of the city requires all ordinances appropriating money to be published. ’ In Mix v. The People, 106 Ill. 426, we held' that an ordinance levying the city tax was not required to be published, but only ordinances making appropriations of money. This case is conclusive of the question raised. To the various objections which were filed to the assessment a demurrer was interposed and sustained, and it has been taken for granted in the argument that the demurrer admitted the truth of each objection so filed. We are aware of no statute or well settled practice which authorizes a demurrer tó be filed in such a case. Where objections are filed in such a case it is incumbent on the party filing them to' sustain them by proof, unless they appear on the record. We are not inclined to sustain a practice which will admit the truth of every objection which may be filed, however" frivolous, although a demurrer may be interposed to the objection. The judgment will be affirmed. Judgment affirmed.