City of Springfield v. Greene

• Citation: 120 Ill. 269,11 N.E. 261
• Parties: CITY OF SPRINGFIELD v. GREENE and others.
• Decision Date: 23 March 1887
• Court: Supreme Court of Illinois

120 Ill. 269

11 N.E. 261

CITY OF SPRINGFIELD

v.GREENE and others.

Supreme Court of Illinois.

March 23, 1887.

Appeal from county court, Sangamon county.

J. M. Grout and Greene, Burnett & Humphrey, for appellant, the City of Springfield.

Allen, Brown & Brown, for appellees, Emily A. Greene and others.

MULKEY, J.

In February, 1886, the city of Springfield adopted an ordinance providing for the pavement of a large number of its streets and alleys, particularly specifying the materials to be used, and the manner in which the work was to be done. The ordinance directed the expenses of paving the intersections of the streets and alleys to be paid by general taxation, and that the cost of paving such portions of them as were occupied by railways should be defrayed by a special tax to be levied upon the right of way of the owners of such railways. The balance of the expenses of the improvement was directed to be raised by a special tax to be levied and assessed upon the lots and real estate abutting upon said streets and alleys. The assessment as made by the commissioners appointed under the ordinance was, on application to the county court of Sangamon county for that purpose, duly confirmed except as to certain lots belonging to appellees. As to these lots the court held some of the objections to the assessment well taken, and thereupon entered an order annulling the same, and dismissing the proceeding, to reverse which the city has appealed to this court.

Able and elaborate arguments have been filed in the case on behalf of appellees, which strike at the very foundation of the assessment. They renew, with great force of reasoning, the claim or contention that an ordinance requiring the cost of improving a street or sidewalk to be assessed upon the real estate abutting thereon in proportion to the frontage of the several parcels of such real estate is obnoxious, if not to the letter, at least to the spirit, of the constitution, and consequently void. The following provisions of the constitution are referred to as sustaining the claim and contention in question: Sections 1, 2, and 19, art. 2; sections 1, 2, and 6, art. 9. That this objection would have been good under the constitution of 1848 is not denied. City of Chicago v. Larned, 34 Ill. 203. But that the reverse of this is now the rule where the cost of the improvement is to be raised by special taxation is conclusively shown by the following authorities: White v. People, 94 Ill. 604;Craw v. Tolono, 96 Ill. 255;Bigelow v. Chicago, 90 Ill. 53;Fagan v. Chicago, 84 Ill. 234;Enos v. Springfield, 113 Ill. 65;Galesburg v. Searles, 114 Ill. 217;Watson v. Chicago, 115 Ill. 78, 3 N. E. Rep. 430; City of Sterling v. Galt, 117 Ill. 15, 7 N. E. Rep. 471. The change in the ruling upon this question is based primarily upon the difference between the present constitution and the constitution of 1848; and also in part upon the construction which has been placed upon our present statute relating to local improvements by municipal corporations. The construction in question recognizes a distinction between a special assessment and special taxation, in respect to the right of the owners of the property assessed to have the question of benefits passed upon by a jury. In the former case such right is held to be given by the statute, while in the latter it is denied. This whole matter is so fully discussed in the cases above cited, wherein will be found all the reasons for and against the rule as now held by this court, that it would be but a mere idle waste of time to go over the ground again, and we therefore decline to do so. If this were a new question, the writer, and perhaps other members of the court, would take the view of appellees upon this question, ( White v. People, supra,) but it is not. If it be possible to settle any question by repeated decisions all the same way, the present one surely ought to be regarded as finally and irrevocably settled.

The ordinance is also assailed on the ground that it embraces more than one improvements. We do not think this is true in point of fact. While many streets and parts of streets are embraced in the scheme of improvement adopted by the city, yet we regard them all as but parts of the same improvement. The city authorities, in adopting the ordinance, must have found, as a matter of fact, that those streets and parts of streets were so similarly situated with respect to the improvement proposed to be made as to justify treating them as parts of a common enterprise and single improvement, and from the record before us we think they were justifiedin doing so. They were all to be paved with the same material, and in the same way; and the fact that there was a difference of a few feet in the width of some of them, and that the cost of paving the railway tracks in others was to be excluded from the estimate, should, in our opinion, make no difference in this respect. The similarity of the improvement proposed to be made, and the situation of the property to be assessed, with respect to it, afford a more satisfactory test as to whether they might all be embraced in a common scheme, as one improvement, than their actual connection or physical contact with one another. It is true, expressions are to be found in one or two cases looking in a contrary direction, but these expressions were made in arguendo merely, and not for the purpose of laying down any rule on the subject. So far as the actual decisions of this court go, they support the contrary view, and are in perfect harmony with what is here said. Prout v. People, 83 Ill. 155;People v. Sherman, Id. 167;...