O'Neil v. People ex rel. Kochersperger

Mr. Justice Baker delivered the opinion of the court: Appellant contends that the ordinance in this case is void, but on behalf of appellee it is urged that this question cannot be raised in this, a collateral, proceeding; that the confirmation of the special assessment is an adjudication as to the validity of the ordinance, and is conclusive as against appellant in this proceeding. The objections to the ordinance were not made in the confirmation proceeding. In a case such as this the rule is that the ordinance can be attacked on the ground it is void, but on this ground only, for if the ordinance is void, the court, .in the assessment proceeding, had no jurisdiction, and all the proceedings based upon the ordinance are consequently void. Thus the question of the validity of the ordinance is a jurisdictional one, and may properly be raised in this proceeding. Culver v. People, 161 Ill. 89; Doremus v. People, id. 26; Cole v. People, id. 16. The ground upon which the ordinance is attacked is, that the improvement provided for therein is not a local improvement, and cannot, therefore, be paid for by special assessment. The ordinance recites: “That for the purpose of providing for a supply of water for fire protection in said village and for the use of the inhabitants of said village of Maywood, there shall be located, erected and constructed a • connected system of water-works, with the necessary reservoirs, fire hydrants and water mains, located and constructed as hereinafter provided,” and that said system of water-works, with the attachments thereto, should be constructed of the materials and in the manner “shown on the plans and profiles thereof, and 'as provided by the specifications thereof on file in the office of the village clerk of said village.” The burden of proof was upon appellant to show the invalidity of the ordinance, and this he has not done. A reference to the plans, profiles and specifications mentioned in the ordinance would doubtless show whether the ordinance contemplated the construction merely of reservoirs, fire hydrants and water mains, which are clearly local improvements and may be paid for by special assessment, (Rev. Stat. chap. 24, sec. 231,) or whether it contemplated the construction also of" the stand-pipe, engine house, etc.,—improvements that are general and not local in their character. But said plans, profiles and specifications are not found in the record. The ordinance is, at most, ambiguous, but seems to have contemplated the construction of reservoirs, fire hydrants and water mains, and the estimate of cost was not, as in Village of Morgan Park v. Wiswall, 155 Ill. 262, and other cases cited by appellant, for improvements plainly not local, but was only for reservoirs, fire hydrants and water mains, and other things necessarily appurtenant thereto. This appears from the report of the commissioners appointed by the ordinance: “Estimate oe Cost. Cost of labor and materials, water reservoirs, hydrants and water mains and appurtenances.............$173,402 Other expenses attending said improvement.......... 19,000 Cost of making and levying the assessment........... 4,000 Total....................................... $196,402” In said report the commissioners say that an ordinance having been passed providing for the construction and establishment of a system of water-works, water mains and hydrants, the cost of certain portions thereof to be paid for by special assessment, and they having been appointed “commissioners to make an estimate of the said portion of said cost of said improvement, do hereby submit our estimate of the portion of said cost of said contemplated improvement, as follows,” etc. The use of the word “portion” in their report, together with the fact that their estimate was limited to the items mentioned in the “estimate of cost” above set forth, shows that the commissioners understood the ordinance in the restricted sense we have indicated,—that is, that the construction of reservoirs, fire hydrants and water mains was the improvement contemplated by the ordinance and which was to be paid for by special assessment. The fact that said report was approved by the president and trustees of the village shows that the ordinance was understood by them in that sense. Under such circumstances, and since the contract has been let and the work done, the ordinance should not be held void. It is further contended that the assessment is void because “it is divided into installments, when there is no provision for so doing in said ordinance or otherwise.” Section 4 of the ordinance provides: “That when said special assessment shall be levied pursuant to law, and prior to the commencing of the collection thereof, the president and board of trustees of said village of May-wood shall provide, by ordinance, that said assessment shall be divided into ten installments,” etc. Continuing, the section details the manner in which said installments shall be divided, etc. No such second ordinance as that mentioned in section 4 was ever passed by the village. Counsel say that there was, therefore, no authority to divide the assessment into installments, as was done. A subsequent or second ordinance was not necessary. Said section 4 substantially divided the assessment into ten installments. That part of the section which said that a future ordinance should be passed is insensible. It is mere surplusage, and may be disregarded. The remainder of the section stands good without it. It is a sufficient answer, however, to this contention, (waiving the question as to whether this objection could be properly interposed in this proceeding,) that the objection was not made in the court below, and cannot be made for the first time on appeal. Delamater v. City of Chicago, 158 Ill. 575. We find no error in the record, and the judgment will be affirmed. Judgment affirmed.