Fahnestock v. City of Peoria

• Decision Date: 14 February 1898
• Citation: 49 N.E. 496,171 Ill. 454
• Parties: FAHNESTOCK v. CITY OF PEORIA.
• Court: Illinois Supreme Court

171 Ill. 454

49 N.E. 496

FAHNESTOCK

v.CITY OF PEORIA.

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from Peoria county court; R. H. Lovett, Judge.

Proceeding by the city of Peoria for the confirmation of a special tax assessment for the improvement of a portion of Hamilton street, in said city, to which certain property owners objected. From a decree of confirmation in accordance with the finding and verdict of the jury, H. H. Fahnestock appeals. Affirmed.

W. T. Whiting, for appellant.

W. T. Irwin, City Atty., for appellee.

PHILLIPS, C. J.

The city of Peoria adopted an ordinance for the levy of a special tax for the improvement of Hamilton street, between Monroe and Bluff streets. The ordinance describes the nature, character, locality, and description of the improvement; provides that 90 per cent. of the cost, including levying and collecting the tax, shall be paid by special taxation upon contiguous property, according to frontage; requires the improvement should conform to plans; divides the assessments into seven installments; authorizes and provides for the issue and sale of bonds; and appoints commissioners to make an estimate. The estimate was fixed at $23,461.78, and was approved by a resolution of the city council, which further authorized the filing of a petition. At the January term, 1895, of the county court of Peoria county, the appellee filed its petition in that court, and the court appointed commissioners to spread the assessment. The commissioners reported that they examined the locality of said improvement, and that they proceeded to apportion and assess the sum of $23,461.78 upon the several lots, blocks, tracts, and parcels of land contiguous to said improvement by frontage, and that they made the assessment and assessment roll. By that assessment the special tax on appellant's land was $1,234.45. Appellant and others appeared, and filed objections, and, as shown by this record, no other steps were taken until the January term, 1896. None of the objections are here urged as ground of reversal except the fourth and fifth, which are practically the same, and which raise the question that the special tax assessed on the property of appellant exceeds the special benefits to accrue by reason of the proposed improvement. That question was submitted to a jury on the trial, and on the question thus presented the jury found that appellant's property was benefited to the amount of the assessment. A motion for a new trial was overruled, and a judgment of confirmation entered, and appellant prosecuted this appeal, and urges the following points for reversal: That the witnesses called on behalf of petitioner were permitted to testify as to the benefits of the property assessed, and were not confined to special benefits; that the verdict of the jury was against the evidence in the case; that the court erred in giving the jury certain instructions asked by appellee. The special tax sought to be levied was proceeded with up to the spreading of the assessment roll by the commissioners prior to July 1, 1895, and after that date proceedings for confirmation were had before the county court of Peoria county. In Illinois Cent. R. Co. v. City of Wenona, 163 Ill. 288, 45 N. E. 265, it was said (page 291, 163 Ill., and page 265, 45 N. E.): ‘This proceeding was commenced when section 17 of article 9 of ‘An act to provide for the incorporation of cities and villages' approved April 10, 1872, was in force, and under which the...