City of Bloomington v. Latham

• Decision Date: 02 November 1892
• Citation: 142 Ill. 462,32 N.E. 506
• Parties: CITY OF BLOOMINGTON v. LATHAM et al.
• Court: Illinois Supreme Court

142 Ill. 462

32 N.E. 506

CITY OF BLOOMINGTON

v.LATHAM et al.

Supreme Court of Illinois.

FN1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

Nov. 2, 1892.

Appeal from McLean county court.

Petition by the city of Bloomington for the assessment of special taxes. Frances J. Latham and Anna E. Loehr filed objections to the assessment. The petition was dismissed, and petitioner appeals. Affirmed.

Craig, J., dissenting.

Sain Welty, for appellant.

Benjamin & Morrissey, for appellees.

MAGRUDER, J.

This is a petition filed in the county court of McLean county on November 19, 1891, by the city of Bloomington, for the appointment of commissioners to assess the special taxes to pay for the operating and extension of an alley in a block in that city, ‘including compensation for property taken or damaged, if any, or both, and the cost of an assessment of a special tax to pay therefor, and of the collection of the same, and of condemnation proceedings,’ etc. On the same day commissioners were appointed to assess the cost of said improvement in the manner prescribed by the ordinance hereinafter named, and the statutes, etc. On November 28, 1891, the commissioners took an oath to make a true and impartial assessment of the special taxes, and on December 4, 1891, made and returned their assessment roll. On December 16th, Frances J. Latham, the owner of lot 1, hereinafter named, and Anna E. Loehr, owner of lot 2, hereinafter named, filed objections to the appointment of commissioners, to their report, to the confirmation of the same, and to the entry of judgment. On December 28, 1891, a hearing was had before the court on said objections, some of which were overruled and others sustained, and the petition of the city was dismissed. The orders sustaining the objections and dismissing the petition were excepted to. The present appeal is prosecuted from the judgment of the county court dismissing the city's petition.

The block above referred to lies between Front street on the north and Grove street on the south, and between Lee street on the east and Low street on the west. Lots 1 and 2, the former being east of the latter, run from Front street to Grove street; all the other lots in the block run to the middle of the block only. Before the passage of the ordinance hereinafter mentioned, an alley, 10 feet wide, ran from Lee street westward through the middle of the block to the east line of lot 1; and the lot owners west of lot 2 ahd conveyed to the city the ground for an alley 10 feet wide through the middle of the block eastward from Low street to the west side of lot 2. The object of the present proceeding is to connect the alley on the west with the alley on the east by extending them through losts 1 and 2, and by taking from the appellees for that purpose a strip of land 10 feet wide running through the middle of their lots. The petition recites that the city had adopted article 9 of the city and village act; that on July 31, 1891, it passed an ordinance for the opening and extension of said alley in said block, by which it is ordained, in section 1 thereof, that said alley be opened and extended from the east end of the alley west of said lots to the west end of the alley east thereof; in section 2, that the cost of opening and extending said alley, including the cost of real estate taken or damaged for that purpose, or both, and expenses, etc., be paid for by special taxation, and a special tax equal to the whole cost of said improement and of collecting said tax be assessed and collected upon and from each of the lots or parcels of land abutting upon said alley along the proposed line thereof, in proportion to the frontage thereof upon said alley; in section 3, that, upon the approval by the city council of the report of the committee provided for in section 4, the city attorney filed in the county court a petition, asking that compensation be made and ascertained by jury for private property to be taken or damaged, or both, for said improvement, and also a petition for the appointment of commissioners to assess the special tax therein provided for, as required by law; and, in section 4, that three persons be appointed commissioners to make an estimate of the cost of said improvement, including compensation for property taken or damaged, if any or both, and the cost of the assessment and collection of the special tax and of the condemnation proceedings, and report the same to the council. The petition then proceeds to state that, on the same day, the persons so appointed made their report, estimating the cost of said improvement, including compensation for property taken or damaged, or both, at $400, and the costs of assessing and collecting the special tax at $60; that the city council instructed its attorney to file this petition. The petition closes with a prayer for the appointment of commissioners to assess the special tax, as above set forth. The assessment roll, so filed by the commissioners, recited that they assessed the whole cost of the improvement, amounting to $1,375, against the property contiguous thereto, as provided by said ordinance, and that the amount of the special tax assessed against lot 1, owned by Frances J. Latham, was $626, and the amount thereof assessed against lot 2, owned by Anna Loehr, was $749. The petition for the assessment of the special tax, so filed on November 19, 1891, makes no reference to the proceedings taken under the petition filed for the condemnation of the property; but those proceedings were introduced in evidence upon the hearing of said objections, and show that, on August 6, 1891, the city filed a petition in said county court, containing copies of said ordinance and of the estimate of the cost of said improvement made by the committee appointed by the council, and stating that Frances J. and William A. Latham were owners of said lot 1, and Anna E. and Susan E. Loehr of said lot 2; that part of said lots would be taken or damaged for said improvement; that the city had been unable to agree with the owners as to compensation; that the council had instructed its attorney to petition for condemnation, and praying that just compensation for private property taken for or damaged by said improvement be ascertained by a jury; that the property owners were duly served with summons; that a jury was sworn and impaneled to ascertain and report the compensation, both parties appearing by their attorneys; and that on August 18, 1891, a judgment was rendered, in which, after reciting the appearance of the parties, and the jury having heard the evidence and arguments of counsel and received the instructions of the court, had returned a verdict finding the just compensation to be as hereafter stated in the opinion; it was adjudged that the defendants Latham receive of the city the said sums so awarded them ‘as the just compensation for the taking and damaging such land, improvements, and property, to wit, lot 1,’ etc.; and that the defendant Loehr receive of the city the said sums of money awarded ‘as the just compensation for the taking and damaging said land and property, to wit, lot 2,’ etc.; and that the city pay the said several sums so awarded, with the costs, into this court, or to Frances J. and William A. Latham and Anna E. Loehr, or to the treasurer of McLean county; and that, upon such payment being made, the city should have the right at any time thereafter to enter upon and take possession of the said lands, improvements, and property. Upon the hearing of the objections it was admitted by the city that, upon the trial of the condemnation suit, the city introduced testimony to show whether or not the opening of the alley would benefit the portions of the lots not sought to be taken, and how much in dollars and cents such benefit would be. It is assigned as error that the county court sustained the objections to the confirmation of the assessment. One of the objections so sustained is that this proceeding is in violation of section 13 of article 2 of the constitution. That section, which is a part of the bill of rights, provides that ‘private property shall not be taken or damaged for public use without just compensation.’ Section 2 of article 9 of the city and village acr directs that, where the city or village provides by ordinance for the making of any local improvement, it shall by the same ordinanceprescribe whether the same shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both. Sections from 3 to 15, inclusive, apply to cases where the local improvement named in the ordinance requires the taking or damaging of private property. The last-named sections specify the mode of proceeding to be adopted for making just compensation for the private property to be taken or damaged for said improvement. In pursuance of a petition to be filed by the city or village in a court of record, and after notice by service of process or publication upon the parties defendant, the compensation must be ascertained by a jury; and the final judgment rendered upon the finding of the jury is a lawful condemnation of the property to be taken, upon the payment of the amount of such finding in the manner therein provided. Section 53 of said article 9 provides that, in the same proceeding in which the judgment of condemnation is rendered, the city or village may file a supplemental petition praying that an assessment be made ‘for the purpose of raising the amount necessary to pay the compensation and damages which may be or shall have been awarded for the property taken or damaged, with the costs of the proceeding.’ In the case at bar the petition for the assessment of the special tax does not purport to be a supplemental petition in the eminent domain proceeding, but it must be regarded as such because there is no other provision in the statute for making an assessment to raise the amount awarded as compensation...