City of Bloomington v. Reeves

• Decision Date: 21 December 1898
• Citation: 52 N.E. 278,177 Ill. 161
• Parties: CITY OF BLOOMINGTON v. REEVES et al.
• Court: Illinois Supreme Court

177 Ill. 161

52 N.E. 278

CITY OF BLOOMINGTON

v.REEVES et al.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from McLean county court; Roland A. Russell, Judge.

Application by the city of Bloomington against O. T. Reeves and others to confirm a special tax. From a judgment denying confirmation, petitioner appeals. Affirmed.William R. Bach, Sigmund Livingston, and J. J. Thompson, for appellant.

J. E. Pollock, Rowell, Neville & Lindley, C. Rayburn, and Owen T. Reeves, for appellees.

CRAIG, J.

This is an appeal from a judgment of the county court of McLean county denying an application for the confirmation of a special tax levied to pay the cost of paving and grading certain streets in the city of Bloomington. The proceeding was instituted under the act of June 14, 1897 (Laws 1897, p. 102). The appellees have entered a motion to dismiss the appeal, on the ground the statute does not authorize the city of Bloomington to appeal. The only provisions found in the above act, in case of special assessment or special tax, relating to appeals, are found first in the last clause of section 47, which declares: ‘The determination of the court as to the correctness of the distribution of the cost of the improvement between the public and the property to be assessed shall be conclusive, and not subject to review on appeal or writ of error;’ and in the first clause of section 56: ‘The judgments of the court shall be final as to all the issues involved, and the proceedings in said cause shall be subject to review by appeal or writ of error as hereinafter provided, and not otherwise;’ and section 95: ‘Appeals from final judgments or orders of any court made in the proceedings provided for by this act may be taken to the supreme court of this state, in the manner provided by law, by any of the owners or parties interested in lands taken, damaged or assessed therein, and the court may allow such an appeal to be taken jointly, and upon a joint bond, or severally and upon several bonds, as may be specified in the order allowing the same.’ It is apparent that there is no provision of the act which authorized the city, when it happened to be defeated in the county court, to appeal; and, if the right of appeal depended solely on the act under which the proceeding was instituted, then the appeal could not be maintained. But we do not think that the right of the city of Bloomington to appeal depends on the act. Section 213 of the act relating to courts (Hurd's Rev. St. 1897, p. 527) provides: ‘Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county court to the supreme court of appellate court in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer.’ See, also, page 1217, c. 110, § 89. These sections of the statute, which expressly allow either party an appeal in a case like the one under consideration, have never been repealed, and under them the city of Bloomington had the right of appeal. If the legislature had intended to cut off all right of appeal on behalf of a city where it was defeated in the county court, these two sections of the statute doubtless would have been modified or repealed. This not having been done, it will be presumed the legislature intended to preserve the right of appeal in the city as it existed heretofore. The motion to dismiss the appeal will be denied.

The first section of the ordinance under which the proceeding was instituted provided ‘that Chestnut street, in said city, from the west line of Center street to the west line of West street, and West street from the north line of Chestnut street to a line twelve feet north of and parallel with the south line of Seminary avenue, be prepared for a brick pavement of two courses of brick and a stone curbing, and be graded and paved as hereinafter provided.’ Upon petition filed by the city of Bloomington in the county court, a commissioner was duly appointed to make assessment of a special tax against the property abutting on the proposed improvement. The tax was assessed, and appellees filed objections to the confirmation of the special tax sale.

The points raised by the objectors, as we understand the record, were: ‘First, that the estimate furnished by the city engineer to the board of local improvements was defective and insufficient; and, second, that the original petition of the property owners for the improvement did not contain the names of persons owning a majority of the frontage on that part of the proposed improvement on Chestnut street; and on account of this failure the city had no power to pass the ordinance. The court overruled the first objection, and sustained the second objection, holding, in substance, that it was necessary, in cities of less than 25,000 inhabitants, in order to give the court jurisdiction, that the petition to the board of local improvements for the proposed improvement must contain the names of persons owning a majority of the frontage of property abutting on the proposed improvement on Chestnut street, and also a majority of frontage on West street. The city of Bloomington contends that the ruling of the county court was erroneous. A correct solution of the questions presented by the record depends upon the construction to be placed upon certain provisions of the act of June 14, 1897, entitled ‘An act concerning local improvements.’ It is conceded in the argument that the petition contained the names of persons owning a majority of the property abutting on those parts of both streets upon which...