Green v. City of Springfield

22 N.E. 602, 130 Ill. 515

• Court: Illinois Supreme Court
• Decided: October 31, 1889
• Status: Published

Opinion

Mr. Justice Bailey

delivered the opinion of the Court:

This is an appeal from an order of the County Court of Sangamon county, confirming a special tax levied upon the property of the appellants, for the purpose of paying the expense of paving certain streets and alleys of the city of Springfield. • This is the second time the case has been before this court. The former appeal was brought by the city of Springfield, and was from an order of the county court sustaining certain objections to said tax and ordering the same to be annulled and the proceeding dismissed. Upon full consideration of the questions then presented, said former order was reversed and the cause was remanded to the county court with directions to allow a certain amendment to the assessment which that court had refused, and for further proceedings in conformity with the views expressed in the opinion delivered upon the decision of that appeal. City of Springfield v. Green, 120 Ill. 269. The cause being reinstated in the county court, said amendment was allowed, and the appellants, at the same time, by leave of the court, filed various other objections to said tax, in addition to those upon which the former hearing" was had. At the subsequent hearing, these, as well as those previously filed, were overruled, and the order from which the present appeal was taken was thereupon entered.

The point is made that the remanding order precluded the filing of further objections or the raising of new issues. With this view we do not concur. In so far as the remanding order contained specific directions, the court below had no discretion, but was bound to carry out the mandate of this court. Such however was not the character of the order, except so far as it directed the allowance of the amendment. Beyond that, the county court was at liberty to take further proceedings, with this limitation, 'that in so doing, it should be controlled and guided by the rules of law established by this court in its decision. That certainly did not preclude the parties from raising questions, if any existed, which had not been submitted to and had not received the consideration of this court.

It should be observed, however, that a very considerable portion, at least, of the objections filed since the decision of the former appeal, are, in substance, but repetitions, with various changes of phraseology, of the identical objections formerly urged, or a statement, in more ample form, and largely by way of argument, of the grounds upon which said objections are sought’ to be based. It is manifest that a mere change or amplification of the statement of an objection, so long as the objection itself remains in substance the same, can not take it out of the rules of law already established in this case. It is only as to those which are substantively new, that the case is still open for consideration.

The first of the objections recently filed and now insisted upon is, that the ordinance under and by virtue of which said special tax is sought to be enforced, is unconstitutional, illegal and void, the ground of the objection, when shorn of its verbiage, being, simply, that the tax which it imposes is not assessed upon “contiguous property,” within the meaning of the constitution. The levy ordered by the ordinance was upon the property “abutting” upon the streets and alleys to be paved, such levy to be in proportion to the frontage of the property on such streets and alleys. The point now made is, that the “abutting property” is not the “contiguous property” upon which section 9 of article 9 of the Constitution permits special taxes for improvements to be levied. While the constitutional question was not discussed in this precise aspect in our former opinion, that aspect of the question was necessarily involved in the decision, and is therefore as completely settled as it would have been if it had been made the subject of special discussion. If this were otherwise doubtful, it becomes very apparent upon examination of the long line of decisions cited in the opinion. In those decisions, the constitutionality of special taxes is considered in all its aspects, including the one above suggested, and is so thoroughly and irrevocably settled as to preclude all further argument.

The next objection is, that the special tax in question has not been legally levied. The point of the objection seems to he, that the provisions of the ordinance are only preliminary to the imposition of the tax, but do not, in legal effect, levy the tax. The ordinance, after ordering the construction of pavements of a certain description upon certain specified streets and alleys, and providing for the payment of the expense of paving the street intersections and crossings by general taxation, and also for the payment of the expense of paving the right of way of so much of said streets as were included in the right of way of steam, horse or street railway companies by such companies, it provides and directs as follows: “The remainder of the cost of said improvements shall be paid for by special taxation, and for that purpose, a special tax, equal in amount to the whole cost of paving that portion of said streets or parts of streets and alleys, not included in the intersections and crossings aforesaid, nor in the right of way of any steam, horse or street railway company, and the cost of all materials required therefor, and all other expenses connected with the same, including the cost of levying and collecting said special tax, is hereby ordered to be levied, assessed and collected upon and from the real estate, lots, parts of lots and tracts of land abutting upon the line of said streets so ordered to be paved, in proportion to the frontage thereof upon the streets or parts of streets and alleys ordered to be paved as aforesaid.”

The ordinance also appointed a committee consisting of three men, and instructed and directed them to make a separate estimate of the cost of paving the several streets, parts of streets and alleys ordered to be paved, including the cost of the labor and materials and all other expenses attending the same, and also a separate estimate of the cost of paving the intersections or street crossings, and report the same to the city council at its next subsequent meeting, or as soon thereafter as might be. It also provided that, upon the filing of the report of said committee and the approval thereof by the city council, the city attorney be directed to file the proper petition in the County Court of Sangamon county, for proceedings to assess that portion of the cost of said improvements required to be raised by special taxation, in the manner provided by article 9, of the general law for the incorporation of cities and villages.

It appears that said committee made its report, and that said report was approved by the city council. A petition was thereupon presented to said county court on behalf of said city by the city attorney, reciting said ordinance, the report of said committee and its approval by the city council, and praying that the cost of said improvements be assessed in the manner provided by law. Upon the hearing of said petition, the court appointed three commissioners to make the assessment, and said commissioners having made the assessment of a special tax upon the abutting property, in accordance with the provisions of said ordinance, and said assessment having been reported to said court, an application was made by said city for the confirmation of said assessment, resulting in the entry of the order brought to this court by the present appeal.

The proceedings in relation to the assessment and levy of said special tax seem to have been conducted in substantial conformity with the provisions of article 9 of the general law in relation to the incorporation of cities and villages, and we are therefore unable to see any force in the objection to said proceedings raised by the appellants. There can be no doubt we think of the sufficiency of the ordinance. As we said in City of Sterling v. Galt, 117 Ill. 11: “When the cost of a local improvement is to be raised' in whole or in part by special taxation, the ordinance itself must either state the sum or give the data by'which the commissioners can fix the amount to be raised, and when so fixed and ascertained, in conformity with the ordinance, it is' conclusive on the property owners. In such case, the municipal authorities, by ordinance, practically fix and determine in advance the amount the property specially benefited is to pay, and the amount thus fixed is not open to review. This being done, all the commissioners have to do is to so assess the property benefited as to raise the required sum.” We are of the opinion that the ordinance in the present case was a compliance with all the requirements of the rule as above stated. It fixed the total tax to be levied, viz., the total cost of the improvement, not including the cost of paving street intersections and the right of way of railway companies, and provided for its assessment upon the abutting property in proportion to frontage. If it be said that the amount of the tax can not be regarded as being definitely fiied until the total cost of the improvement is ascertained, it may be answered that the statute provides for the ascertainment of such cost after the passage of the ordinance, viz., by a committee, and that mode was pursued in this case. It may be further observed that assessments of special taxes by ordinances substantially like the one in this case have been repeatedly sustained by this court. Enos v. City of Springfield, 113 Ill. 65; Wilbur v. City of Springfield, 123 id. 395.

The only remaining question pressed upon our attention relates to the decision of the court overruling the appellants’ motion for a new trial. It is urged that said motion should have been granted, first, because of an erroneous instruction given to the jury at the instance of the city, and second, because the verdict was contrary to the evidence. Some complaint in this connection is made of the rulings of the court in admitting evidence on behalf of the city.

Objection was made to the admission of the ordinance in evidence before the jury, the objections urged being in substance the same already considered. Said objections being, as we have seen, without foundation, there was no error in overruling them. Objection was also made to the admission of the assessment roll, the grounds of objection urged being, that it failed to show an assessment upon all the property “in contiguity” with the proposed improvement; and also that the commissioners had no power or authority under the law to levy any special assessment. The first of' these objections has already been shown to be groundless, and all that need be said in relation to the second is, that as there was a valid ordinance imposing the special tax, the authority of the commissioners to make the assessment was clearly given by the statute. It follows that these objections also were properly overruled.

The evidence offered on behalf of the appellants consisted of the evidence of six witnesses, who testified that, in their opinion, the property of the appellants was assessed more than it should be, or, in other words, that the tax on their property -was more than their just proportion of the entire cost of the improvement. These witnesses all admit, however, in substance, that the tax was levied on the appellants’ property in proportion to'its frontage upon the streets to be improved. The inequality therefore of which these witnesses complain was based, not upon the frontage of the property assessed, but upon its superficial area, its value, or the amount of the benefits resulting to it from the proposed improvement. It is clear that evidence of this character was wholly immaterial. It had no tendency to show that any of the appellants’ property was assessed more than its just proportion basing the estimate upon its frontage, and that was the only inquiry properly open to the appellants. For instance, they might have shown, if they could, that any particular property assessed had a smaller frontage than that estimated by commissioners, and that the assessment was therefore too high, but tha testimony offered had no such tendency. It was in the nature of an attack upon the policy of the Constitution and statutes authorizing the levying of special taxes upon contiguous property, rather than upon the accuracy or fairness of this particular assessment. The evidence then offered by the appellants being wholly immaterial, there could be no question before the jury as to the preponderance of the evidence. The assessment roll was prima facie evidence of a valid assessment, and there being no evidence having any legitimate tendency to the contrary, the only possible verdict was the one given by the jury.

The instruction complained of was, in substance, that the report of the eommissiouers was competent evidence, the same as if the commissioners were upon the stand testifying to the facts therein stated. It is unnecessary for us to determine whether this instruction was proper or not. The commissioners’ report was undoubtedly prima facie evidence, and as there was no material evidence tending to rebut it, the instruction, if erroneous, can have wrought no prejudice to the appellants. Had the jury been properly instructed, or had they "been permitted to consider of their verdict without instruction, we can not presume that any different result would have been .reached.

We are of the opinion that there is no material error in the record, and the order of the county court confirming the assessment will be affirmed.

Order affirmed.