Davis v. City of Litchfield

• Decision Date: 03 April 1893
• Citation: 145 Ill. 313,33 N.E. 888
• Parties: DAVIS et al. v. CITY OF LITCHFIELD.
• Court: Illinois Supreme Court

145 Ill. 313

33 N.E. 888

DAVIS et al.

v.CITY OF LITCHFIELD.¹

Supreme Court of Illinois.

April 3, 1893.

Appeal from Montgomery county court; George R. Cooper, Judge.

Petition by the city of Litchfield to confirm the assessment of a special tax. The tax was confirmed, and William G. Davis and others, whose property was taxed, appeal. Reversed.

James M. Truitt, for appellants.

John P. Gardner, (Milton M. Creighton, of counsel,) for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

The city of Litchfield, incorporated under a special charter, on the 6th of November, 1890, adopted article 9 of the general act for the incorporation of cities, towns, and villages. On May 14, 1892, an ordinance was duly passed for the ‘grading, graveling, guttering, curbing, and paving with brick’ of State street in said city, from the south line of Hayward street to the south line of Third street; ‘the cost thereof to be paid by the special taxation of the lots and parcels of land abutting upon said street upon both sides thereof, along the line of said improvement.’ Section 3 provided for the extent and character of the improvement, and is sufficiently set out in the opinion. The fourth section appoints certain persons a committee ‘to make a separate estimate of the costs of paving said street mentioned in section 1 of this ordinance, excepting so much thereof as is included in the street and alley intersections and crossings of the same,’ etc., including the cost of levying and collecting the special tax ordered, and also a separate estimate of the cost of paving said street and alley intersections and crossings. Section 5 provided that the expense of paving the street and alley intersections and crossings should be included in and paid from the general taxes of the city; and section 6 that the remainder of the cost of said improvement be paid by said special taxation, and for that purpose a special tax equal in amount to the whole cost of paving said street, except the intersections and crossings, including the cost of levying and collecting the special tax, is ordered to be levied, assessed, and collected ‘upon and from each of said lots, parts of lots, and parcels of land, in proportion to the frontage thereof upon said street along the line of said improvement,’ etc. The remaining sections relate to the manner of perfecting the tax, letting the contract for and completing said improvement. Section 14 of the ordinance divided the special tax into five installments, payable 20 per cent. upon the confirmation of the tax, and 20 per cent. each year thereafter, etc. The committee named in the ordinance reported the cost of the improvement, including intersections and crossings, $6,885.26; cost of paving the street and alley intersections, $2,076.26. It was thereupon ordered by the city council that petition be filed in the county court for further proceedings in conformity with the ordinance and the statute, which was accordingly done, and commissioners appointed to make the levy and assessment in the manner prescribed in said ordinance, etc. Subsequently, and at the May term, 1892, of said county court, said commissioners filed a report, or tax roll, showing the assessment upon the property abutting upon said improvement. It appeared from said report that the assessment was made according to frontage; but it also appeared that the assessment as against 247 feet of the frontage was levied at the rate of $6.40 1/2 per front foot, and as to 320 feet frontage at the rate of $5.28 3/4 per front foot, and as to 88 feet frontage at the rate of $6.87 1/2 per front foot, and as to 66 feet frontage $4.03 1/3 per front foot, and as to 150 feet frontage at the rate of $5.86 2-10 per front foot. Upon the return of the assessment roll numerous objections were filed by lot owners, which were set for hearing Monday, June 6, 1892. On that day the city asked and obtained leave to amend its petition, which it did, showing that an amendatory ordinance had been passed, etc., on the 31st day of May, 1892. The amendatory ordinance provided that the ordinance authorizing said improvement ‘be amended’ by adding to section 6 of said ordinance the following words in quotation marks: ‘But only in proportion to the amount of payment in front of each of said lots, parts of lots, and parcels of land along the line of said improvement so ordered to be made.’ It was further provided in the ordinance that the committee theretofore appointed to make an estimate of the cost of said improvement make an amended report thereof, in accordance with said original ordinance, ‘and in making the estimate of the cost therein provided to be levied, assessed, and collected by special taxation they shall also make a separate estimate of the cost to be levied, assessed, and collected by special taxation, for the different widths of pavement so ordered to be made.’ They made and returned an estimate substantially as before, which was approved by the board, etc. Objections were filed to the confirmation of the tax roll returned, by the several landowners, which were overruled by the court, and the special tax roll, returned by the commissioners appointed by the court, was approved and confirmed, etc. The landowners prosecute the present appeal.SHOPE, J., (after stating the facts.)

The ordinance provided for the improving and paving of State street from the south line of Hayward street to the south line of Third street, in the city of Litchfield, the entire length being practically three blocks. The pavement from the south line of Hayward street to the north line of Division street, a distance of about 240 feet, was required to be 75 feet wide, or 37 1/2 feet on each side of the center line of the street. From the north line of Division street to the south line of Fourth street-practically 230 feet-the pavement was required to be of the width of 64 feet, or 32 feet on each side of the center line. From the south line of Fourth street north to the south line of Third street-the north end of the improvement-it is provided that there should be left in the center of the street a park or plat of ground 20 feet wide, and that the pavement between said points should be 22 feet wide on each side of said plat; thereby making the pavement, from the south line of Fourth street to the south line of Third street,-a distance of about 320 feet,-44 feet wide. The ordinance provided that the improvement should be paid for, except street and alley intersections and crossings, by special taxation of contiguous property according to frontage upon the same; the cost of paving street and alley intersections and crossings to be paid by general taxation. The committee appointed by the ordinance to make an estimate of the cost of said improvement reported the total cost of the same, excluding street and alley intersections and crossings, and including the cost of levying and collecting said special tax, at $6,869.13, and the cost of the street and alley intersections and crossings at $2,076.26. Said estimate, having been approved by the city council, a petition was duly presented to the county court, and commissioners were appointed to assess said sum of $6,869.13 upon the property contiguous to said improvement. Said commissioners, instead of complying with the order, and assessing the contiguous property according to frontage, assessed against the several lots, blocks, and tracts of land abutting upon the part of the street so to be improved the estimated cost of the improvement in front of each lot or tract of land, and adding thereto a percentage to cover the cost of the collection. Upon the return of the assessment roll, and objections thereto being filed, the city asked and obtained leave to amend its petition, and the cause was continued. The amendment was subsequently made setting up an amended ordinance, passed after the return of the assessment roll, requiring that the tax be levied upon such contiguous lots, parts of lots, and tracts of land according to frontage, ‘but only in proportion to the amount of pavement in front of each of said lots, parts of lots, and parcels of land along the line of said improvement.’ And the committee appointed in the original ordinance was required to make and return an amended estimate, showing the cost to be levied as a special tax, and to ‘make a separate estimate of the cost to be levied, assessed, and collected by special taxation for the different widths of pavement so ordered to be made,’ which was done. The assessment roll as originally returned was, against the objection of contiguous lot owners, confirmed by the court.

Numerous questions are raised upon this record going to the validity of the special tax, but we shall confine ourselves to a discussion of the power of the city to thus impose the burden. It is practically conceded, and, if it were not, it must be held, that the assessment roll returned was not in compliance with the provisions of the ordinance, requiring that the tax be assessed according to frontage. The contiguous property was assessed at various sums, ranging from $4.03 1/2 to $6.87 1/2 per front foot. In cases where the improvement is of the character that the benefits may be expected to diffuse themselves along the line of the improvement in a degree bearing some proportion to the frontage, a division of the burden by that standard may apportionately be adopted, (Cooley, Tax'n, 433, 434;) and, indeed, this mode may in some instances be more reasonable and just than assessment upon a valuation of the contiguous property. Ordinarily, perhaps, the power to adopt this method has been denied, unless sanctioned by express legislative authority. But we are committed to the rule holding that the municipality may adopt it as the measure and standard of apportioning special taxes. See Wilbur v. City of Springfield, 123 Ill. 395, 14 N. E. Rep. 871, and cases cited. In all such cases the limits...