Mr. Justice Scott
delivered the opinion of the court:
Where members of a board' of local improvements and a contractor, for the purpose of profiting the contractor or injuring the owner of property specially assessed, or from other corrupt or malicious motive, enter into a conspiracy, which is carried out, whereby another and different improvement, of an inferior character from the one specified in the ordinance and contract, is substituted for the one so specified, do the conspirators become personally liable to the owper of property, which has been specially assessed to pay for the improvement, for damages sustained by him by reason of the fact that his property does not obtain the benefit from the substituted improvement that it would have obtained from the improvement for which it was specially assessed?
The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance. (Elliott on Roads and Bridges, p. 503; Shearman & Redfield on Negligence,—4th ed,—sec. 316; Throop on Public Officers, sec. 708; Moss v. Cummings, 44 Mich. 359; Owen v. Hill, 67 Mich. 43; Bailey v. Berkey, 81 Fed. Rep. 737; Benjamin v. Wheeler, 8 Gray, 409; Elder v. Bemis, 2 Metc. 599; Butler v. Kent, 19 Johns. 223.) But where a duty to improve or repair a road or street is an imperative one, and is one in which an individual has a peculiar private interest as distinguished from that which he has in common with other members of the com- ■ munity, the officer who corruptly refuses to perform the duty so enjoined upon him must make good to the individual any special loss or damage that he may have sustained. Elliott on Roads and Bridges, p. 508; Throop on Public Officers, sec. 707; McDonald v. English, 85 Ill. 232; Tearney v. Smith, 86 id. 391; Hotz v. Hoyt, 135 id. 388; Barnard v. Comrs. of Highways, 172 id. 391.
The plaintiff cannot recover unless the defendants owed to her a duty other than that owing to the public generally and unless a special injury has resulted to her from a breach of that duty. No private action will lie for damages of the same kind as those sustained by the general public, although the plaintiff may be damaged in a much greater degree than any other person. If, for example, the authorities of a city should undertake to pave a street by general taxation, and should so negligently perform the work of construction that travel on that street, instead of being facilitated, should be actually impeded, the injury is to the entire public, and one whose residence abuts on that street could not recover even though his damages were much greater than those of another resident of the city who lived several miles away, because the injury or damage sustained by each is of like character though that of one is much greater in degree than that of the other, and, the only injury being one to the public, the defaulting officer is liable only to the public. The fact, however, that many others sustain an injury of exactly like kind is not a bar to an individual action. City of Chicago v. Union Building Ass. 102 Ill. 379.
The theory of our law providing for the making of local improvements by special assessments is, that the property specially assessed shall be benefited by the improvement as much, at least, as the amount of the special assessment. In carrying out the contract for the improvement, where, as here, it is for a pavement, in accordance with the ordinance and the contract, the contractor and the board of local improvements are performing a duty, which they owe to the public generally, of providing a paved street upon which travel and the transportation of property will be promoted. That duty they owe to the entire community, but they also owe a special duty to the owner of the property assessed, to comply with, and to enforce compliance with, the ordinance and the contract for the purpose of benefiting and increasing the value of that property. That is a duty they do not owe to the general public. The law does not require that the improvement should benefit any property except the property specially assessed. It is apparent, therefore, that the members of the board of local improvements not only owe a special duty to the owner of the property specially assessed, but that the substitution by them of an improvement of a different and inferior character from that to which such property owner is entitled and for which he has paid, visits an injury upon him of a kind . not sustained by the general public.
It is urged by appellees that in the case of City of Chicago v. Union Building Ass. supra, this court took the view that the person specially assessed to improve or open a street had, on that account, no other or different right in the street than that possessed by every other citizen,— and this is correct. But it does not meet the difficulty here presented. The question here is, whether appellant is entitled to have the improvement made for which she has paid, and, if so, whether she has a right of action against the board of local improvements which has wrongfully diverted the money raised by special assessment from its proper uses, so that she has not obtained the benefit that the law intends she should obtain. In the Union Building Ass. case, the complainant’s property had been specially assessed for the purpose of opening a street in its vicinity, and the street was opened. Thereafter the city proposed to vacate and close the street so opened, and complainant sought an injunction upon the ground, among others, that as it had paid the assessment for opening the street it had a special property right in the street which the city could not disregard. That contention was denied, and it is apparent that after the street was once opened the complainant had no greater right therein than any other member of the public, that street not affording ingress and egress to and from complainant’s property; but it seems equally clear, after its money had been taken by special assessment for the purpose of opening that street, which would be a benefit to the property specially assessed, complainant would have been specially injured if the street had never been opened in the first instance. Where the improvement has once been made as ordained, the person specially assessed has received all he is specially entitled to receive. He has no special rights thereafter by reason of the fact that he has been specially assessed, so far as that improvement is concerned.
We are therefore of the opinion that appellant suffered damages different in kind from those sustained by other members of the community, and that the appellees owed a special duty to her other and different from that owing to the general public.
It is then said that the members of the board of local improvements were engaged in the performance of judicial functions in examining the work during its construction and in deciding to accept it upon its completion, and for that reason are exempt from liability. We do not think this the correct view. It was the imperative duty of the board of local improvements to require of the contractor that he construct the identical improvement specified by the ordinance and the contract. That was a duty fixed and certain. The members of the board had no discretion to determine whether they would require him to construct the improvement contracted for or permit him'to construct one of an entirely different character.
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Mr. Justice Scott
delivered the opinion of the court:
Where members of a board' of local improvements and a contractor, for the purpose of profiting the contractor or injuring the owner of property specially assessed, or from other corrupt or malicious motive, enter into a conspiracy, which is carried out, whereby another and different improvement, of an inferior character from the one specified in the ordinance and contract, is substituted for the one so specified, do the conspirators become personally liable to the owper of property, which has been specially assessed to pay for the improvement, for damages sustained by him by reason of the fact that his property does not obtain the benefit from the substituted improvement that it would have obtained from the improvement for which it was specially assessed?
The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance. (Elliott on Roads and Bridges, p. 503; Shearman & Redfield on Negligence,—4th ed,—sec. 316; Throop on Public Officers, sec. 708; Moss v. Cummings, 44 Mich. 359; Owen v. Hill, 67 Mich. 43; Bailey v. Berkey, 81 Fed. Rep. 737; Benjamin v. Wheeler, 8 Gray, 409; Elder v. Bemis, 2 Metc. 599; Butler v. Kent, 19 Johns. 223.) But where a duty to improve or repair a road or street is an imperative one, and is one in which an individual has a peculiar private interest as distinguished from that which he has in common with other members of the com- ■ munity, the officer who corruptly refuses to perform the duty so enjoined upon him must make good to the individual any special loss or damage that he may have sustained. Elliott on Roads and Bridges, p. 508; Throop on Public Officers, sec. 707; McDonald v. English, 85 Ill. 232; Tearney v. Smith, 86 id. 391; Hotz v. Hoyt, 135 id. 388; Barnard v. Comrs. of Highways, 172 id. 391.
The plaintiff cannot recover unless the defendants owed to her a duty other than that owing to the public generally and unless a special injury has resulted to her from a breach of that duty. No private action will lie for damages of the same kind as those sustained by the general public, although the plaintiff may be damaged in a much greater degree than any other person. If, for example, the authorities of a city should undertake to pave a street by general taxation, and should so negligently perform the work of construction that travel on that street, instead of being facilitated, should be actually impeded, the injury is to the entire public, and one whose residence abuts on that street could not recover even though his damages were much greater than those of another resident of the city who lived several miles away, because the injury or damage sustained by each is of like character though that of one is much greater in degree than that of the other, and, the only injury being one to the public, the defaulting officer is liable only to the public. The fact, however, that many others sustain an injury of exactly like kind is not a bar to an individual action. City of Chicago v. Union Building Ass. 102 Ill. 379.
The theory of our law providing for the making of local improvements by special assessments is, that the property specially assessed shall be benefited by the improvement as much, at least, as the amount of the special assessment. In carrying out the contract for the improvement, where, as here, it is for a pavement, in accordance with the ordinance and the contract, the contractor and the board of local improvements are performing a duty, which they owe to the public generally, of providing a paved street upon which travel and the transportation of property will be promoted. That duty they owe to the entire community, but they also owe a special duty to the owner of the property assessed, to comply with, and to enforce compliance with, the ordinance and the contract for the purpose of benefiting and increasing the value of that property. That is a duty they do not owe to the general public. The law does not require that the improvement should benefit any property except the property specially assessed. It is apparent, therefore, that the members of the board of local improvements not only owe a special duty to the owner of the property specially assessed, but that the substitution by them of an improvement of a different and inferior character from that to which such property owner is entitled and for which he has paid, visits an injury upon him of a kind . not sustained by the general public.
It is urged by appellees that in the case of City of Chicago v. Union Building Ass. supra, this court took the view that the person specially assessed to improve or open a street had, on that account, no other or different right in the street than that possessed by every other citizen,— and this is correct. But it does not meet the difficulty here presented. The question here is, whether appellant is entitled to have the improvement made for which she has paid, and, if so, whether she has a right of action against the board of local improvements which has wrongfully diverted the money raised by special assessment from its proper uses, so that she has not obtained the benefit that the law intends she should obtain. In the Union Building Ass. case, the complainant’s property had been specially assessed for the purpose of opening a street in its vicinity, and the street was opened. Thereafter the city proposed to vacate and close the street so opened, and complainant sought an injunction upon the ground, among others, that as it had paid the assessment for opening the street it had a special property right in the street which the city could not disregard. That contention was denied, and it is apparent that after the street was once opened the complainant had no greater right therein than any other member of the public, that street not affording ingress and egress to and from complainant’s property; but it seems equally clear, after its money had been taken by special assessment for the purpose of opening that street, which would be a benefit to the property specially assessed, complainant would have been specially injured if the street had never been opened in the first instance. Where the improvement has once been made as ordained, the person specially assessed has received all he is specially entitled to receive. He has no special rights thereafter by reason of the fact that he has been specially assessed, so far as that improvement is concerned.
We are therefore of the opinion that appellant suffered damages different in kind from those sustained by other members of the community, and that the appellees owed a special duty to her other and different from that owing to the general public.
It is then said that the members of the board of local improvements were engaged in the performance of judicial functions in examining the work during its construction and in deciding to accept it upon its completion, and for that reason are exempt from liability. We do not think this the correct view. It was the imperative duty of the board of local improvements to require of the contractor that he construct the identical improvement specified by the ordinance and the contract. That was a duty fixed and certain. The members of the board had no discretion to determine whether they would require him to construct the improvement contracted for or permit him'to construct one of an entirely different character. The duty was therefore ministerial. (People v. Bartels, 138 Ill. 322.) This is not a question of whether or not an improvement of the general character of that specified in the ordinance and the contract has been constructed with trifling differences and defects, so that the board of local improvements might in good faith accept the work as that provided for, but it is a case, as was Gage v. People, 200 Ill. 432, of substituting therefor an improvement of an entirely different character and description; and in making -such substitution instead of requiring the improvement ordained and contracted for, the members of the board of local improvements violated a duty ministerial in its character.
The fact that the appellant could have invoked the powers of a court of equity to restrain any substantial departure from the terms of the ordinance in the performance of the work thereunder, or could obtain a writ of mandamus to compel the city authorities to complete the work as contemplated by the ordinance, (Callister v. Kochersperger, 168 Ill. 334,) or could interpose objections to the application of the county treasurer for judgment against her real estate to satisfy the special assessment, (Gage v. People, 200 Ill. 432,) does not bar her right to bring a personal action against the members of the board of local improvements to recover damages of a kind not sustained by the public in general, occasioned by the malfeasance here charged.
The law authorizing the construction of local improvements by special assessments is somewhat tyrannical in its character. The people who pay the money have but little voice as to whether the improvement shall be made, as to the time when or the manner in which it shall be made, or the amount of money that shall be expended in making it. The officers charged with the expenditure of the funds should be held to a strict compliance with the law, and public policy requires that where they are guilty of corruption they should respond in damages to those specially injured by their wrongdoing. The question set out in the opening paragraph of this opinion must be answered in the affirmative.
The judgments of the Appellate and circuit courts will be reversed and the cause will be remanded to the circuit court, with directions to overrule the demurrer.
Beversed and remanded, with directions.