Greeley v. Town of Cicero

• Decision Date: 26 October 1893
• Citation: 36 N.E. 603,148 Ill. 632
• Parties: GREELEY v. TOWN OF CICERO.
• Court: Illinois Supreme Court

148 Ill. 632

36 N.E. 603

GREELEY

v.TOWN OF CICERO.¹

Supreme Court of Illinois.

Oct. 26, 1893.²

Appeal from Cook county court; Frank Scales, Judge.

Special assessment proceeding brought by the town of Cicero. Objections were filed by Samuel S. Greeley. The assessment was confirmed, and the objector appeals. Reversed.Greeley & Baker and E. P. Prentice, for appellant.

Farlin Q. Ball, E. J. Whitehead, and Wm. J. Donlin, for appellee.

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

On the 29th of October, 1892, the board of trustees of the town of Cicero passed an ordinance providing for the levy of a supplemental assessment to cover a deficiency in an assessment, theretofore made, for an outfall sewer on Ridgeland avenue, and two main sewers tributary thereto, in said town, in pursuance of an ordinance passed by said board December 5, 1891. The ordinance providing for the supplemental assessment of benefits, after reciting the passage of the original ordinance, recites that the commissioners appointed in said original ordinance to make an estimate of the cost of said improvement, including cost of making and levying the assessment, on the 19th day of December, 1891, returned an estimate thereof at $348,943.05, which was approved, and that, on petition of the town to the county court of Cook county, commissioners were appointed to estimate what proportion of the total cost of said improvement would be of benefit to the public, and what proportion would be of benefit to the property abutting, and to apportion the same between said town and such property, so that each should bear its relative equitable proportion; that the commissioners took the oath required by law, and having found said amounts, and assessed and apportioned the amount found to be of benefit to the property upon the several lots, blocks, tracts, etc., in the proportion in which they would be severally benefited by said improvement, and duly made return of the assessment roll, etc. The ordinance then recites that objections by sundry parties were filed in said court against said assessment, and that, ‘upon the trial of said objections, the court modified said assessment roll, * * * so that the property described in said assessment roll should bear its just and proportionate share of the estimated cost of the said proposed improvement, and did thereby reduce the amount which by said commissioners, in said assessment roll, was assessed to and upon the property benefited by said proposed improvement to a large amount, to wit, $57,541.51;’ and reciting, also, that, upon letting the contracts for making and completing said improvement, it was found that the amount of said assessment, as so modified, was insufficient to pay the cost and expenses of making said improvement, including the cost of making and levying the assessment, etc. It is then ordained that a supplemental assessment be made, to cover the cost of said improvement, over and above the amount of the original assessment, including the cost of making and levying the supplemental assessment, upon the property benefited, etc., to the amount that may be legally assessed therefor, the remainder to be raised by general taxation. The ordinance then provides for the collection of the special assessment in installments, appoints commissioners to make an estimate of the cost and expense of completing said improvement, and the cost of levying and assessing, etc. The commissioners, being duly sworn, returned the estimated cost of completing the work, levying and collecting the assessment, at $55,360.34, which was duly approved by the board of trustees of said town. Petition was presented to the county court, and commissioners appointed to spread the assessment, who made and returned an assessment roll finding the amount which should be apportioned to the town of Cicero, 29 cents, and apportioned to the property to be benefited, including that of appellant, $55,360.05.

Objections were filed to the confirmation of the assessment roll returned, by appellant and others. Among those filed by objector Greeley was that his land had already, under the original assessment, been assessed its full proportionate share of the cost of said improvement, and that, by the judgment of the court in the original assessment proceeding, on trial of objections filed in that proceeding by said objector, the full proportionate share of the total cost of said improvement was assessed and fixed to and upon his land. Objector offered in evidence the original petition, etc., in the original assessment proceeding, with the report of the estimated cost of the improvement, the ordinance, and assessment roll returned, his objections thereto, the final judgment entered against his land, and certain other orders of the court. This evidence was objected to by the town, and the objection sustained. The evidence offered showed that the total estimated cost of the improvement, including the levying of the assessment, was $348,943.05. The assessment roll returned assessed the same against the property benefited, including the land of objector. The judgment offered in evidence showed that, upon the trial of the objections of appellant, the court found that his property was assessed, in the assessment roll returned, more than its ‘just proportion of the cost of said improvement; and the court finds from the evidence that the just proportion of said cost which should be assessed on said premises [of objector] is the sum of $2,679.75, and no more.’ It is then ordered that the assessment be reduced, as to said...