Danforth v. Village of Hinsdale

Mr. Justice Craig delivered the opinion of the court: This is an appeal from a judgment of the county court of DuPage county confirming a special assessment levied by the village of Hinsdale to pay for the improvement of Second street, in the said village, from the west line of Garfield avenue to the east line of Lincoln street, by draining, grading, curbing and paving the same. On June 9, 1897, the commissioners appointed to make an estimate of the cost of the proposed improvement made a report in writing to the president and board of trustees, estimating the total cost of the improvement at the sum of §4200. This report was on the last mentioned date duly adopted and approved by the president and board of trustees of the village. A petition was then filed in the county court praying for the appointment of commissioners to make an assessment upon the property benefited to pay for the cost of the improvement. Commissioners were appointed, and they made and returned an assessment roll in conformity to the statute. On the 6th day of July, 1897, the court entered an order requiring all objections to the assessment roll to be filed on or before July 8. Within the time required by the order of court the three appellants, J. J. Danforth, John B. Jarrett and Emma A. Cowles, filed objections to the confirmation of the assessment roll. On July 12 a hearing was had, and all objections were overruled except those to be tried by a jury. On July 9 the assessment was confirmed except as to the premises of appellants. Nothing further was done until October 9, 1897, when appellants moved the court for leave to file additional objections. This motion was denied. The parties then, by agreement, waived a jury and agreed that the issues to be submitted to a jury should be tried -by the court. On the hearing upon the evidence introduced the court entered judgment confirming the assessment on the appellants’ property, and they appealed. Section 3 of the ordinance read in evidence was as follows: “That the special assessment herein ordered to be assessed and levied shall be divided into seven installments, the first of which installments shall include one-seventh of said assessment, together with all fractional amounts, and each of the remaining installments shall be equal in amount and multiples of one hundred (100) dollars,—first installment payable at the confirmation of the assessment, the other installments annually thereafter, with six per cent interest after thirty days from the confirmation.” It is insisted in the argument that the ordinance is void because it fails to specify the amount of each or any of the installments. The same objection was interposed to a similar ordinance in Latham v. Village of Wilmette, 168 Ill. 153, and we held the ordinance valid. The decision in that case is conclusive of the question here raised. It appears from the record that on the third day of August, 1897, a contract was entered into between the village of Hinsdale and one Olaf Vider, a solvent and responsible person, for the construction of the improvement provided for in the ordinance. It also appears that on the fourth day of October, 1897, before the hearing was had, the appellants entered a motion for leave to file further objections to the confirmation of the assessment, one of which was that the assessment was for a greater amount than the actual cost of the improvement. This application was denied by the court, and the court also, on the hearing, refused to admit the contract in evidence. The ruling of the court on this branch of the case is relied upon as error. The contract offered in evidence, as set out in the abstract, was as follows: “Agreement entered into this third of August, 1897, between Olaf Vider and the village of Hinsdale: That Vider should furnish the labor and material and make the improvements provided for in the ordinance, according to the specifications attached, and be paid as follows: For each cubic yard of excavation, seventeen cents; for each lineal foot of curb constructed, fourteen cents; for each square yard of pavement, complete, seventy-six cents; for each lineal foot of 12-in. diameter drain, with man-holes and catch-basins complete, seventy-five cents; for each lineal foot of 9-in. drain, with man-holes and catch-basins complete, sixty cents. Specifications part of this contract. Improvement requires the following approximate quantities: wooden curb, 1780 lineal feet; earth excavation, 1060 cubic yards; cedar-block paving, 2630 square yards, including" 160 feet 12-in. drain, with four man-holes and four catch-basins and iron covers; weight of man-holes 470 pounds, and of catch-basin covers 325 pounds. The price per square yard for pavement complete must include the grading of grass plots and all necessary work on man-holes and catch-basins.” It will be observed that the contract does not show the amount to be paid the contractor for the work to be done. Whether the amount was less or more than the assessment would have to be determined from other evidence. But conceding that the work to be done at the prices specified in the contract would not amount to as much as the assessment, would that fact, of itself, authorize the court to refuse to confirm the assessment? The village had appointed three competent persons to estimate the cost of the improvement, as provided by the statute. The persons appointed had discharged their duties, so far as appears, honestly and conscientiously. A report had been made to the village authorities, which had been approved as required by the statute. Indeed, no fraud or misconduct on the part of the persons appointed to estimate the cost of the improvement is claimed or charged. While it was the duty of the persons appointed to estimate the cost of the improvement to agree upon such an amount as would neither exceed nor be less than what the improvement would actually cost, yet the fact that the amount agreed upon might be too small or too large ought not to be a sufficient ground to defeat the assessment, in the absence of fraud or misconduct on the part of those appointed to estimate the costs of the improvement. If a rule of that character were adopted no assessment could be sustained, as it would be in many cases impossible for the persons appointed to estimate the cost of the improvement to determine that fact with absolute certainty. Indeed, the fact that the statute requires any and all excess which may be collected above the cost of the improvement to be returned to the property owner would seem to indicate that it was not within the contemplation of the legislature that the exact amount of the cost of an improvement could be determined before the improvement had been made. After the improvement has been made and the actual cost has been ascertained no greater sum can be collected from the property owner, although the estimated cost may be for a larger sum. But in an application to confirm a special assessment, where all the proceedings have conformed to the statute and no part of the assessment has been collected, we do not think the property owner can interpose as a defense that the actual cost of the improvement will be less than the estimated cost made by the persons appointed to make an estimate of the cost. The judgment of the county court will be affirmed. Judgment affirmed.