Green v. City of Springfield

• Decision Date: 31 October 1889
• Citation: 22 N.E. 602,130 Ill. 515
• Parties: GREEN et al. v. CITY OF SPRINGFIELD.
• Court: Illinois Supreme Court

130 Ill. 515

22 N.E. 602

GREEN et al.

v.CITY OF SPRINGFIELD.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from county court, Sangamon county; JAMES H. MATHENY, Judge.

Gross & Broadwell, for appellants.

Conkling & Grout and T. McGrath, for appellee.

BAILEY, J.

This is an appeal from an order of the county court of Sangamon county, confirming a special tax levied upon the property of the appellants for the purpose of paying the expense of paving certain streets and alleys of the city of Springfield. This is the second time the case has been before this court. The former appeal was brought by the city of Springfield,and was from an order of the county court sustaining certain objections to said tax, and ordering the same to be annulled and the proceeding dismissed. Upon full consideration of the questions then presented, said former order was reversed, and the cause was remanded to the county court, with directions to allow a certain amendment to the assessment, which that court had refused, and for further proceedings in conformity with the views expressed in the opinion delivered upon the decision of that appeal. City of Springfield v. Green, 120 Ill. 269, 11 N. E. Rep. 261. The cause being reinstated in the county court, said amendment was allowed; and the appellants, at the same time, by leave of the court, filed various other objections to said tax, in addition to those upon which the former hearing was had. At the subsequent hearing, these, as well as those previously filed, were overruled, and the order from which the present appeal was taken was thereupon entered.

The point is made that the remanding order precluded the filing of further objections, or the raising of new issues. With this view we do not concur. In so far as the remanding order contained specific directions, the court below had no discretion, but was bound to carry out the mandate of this court. Such, however, was not the character of the order, except so far as it directed the allowance of the amendment. Beyond that, the county court was at liberty to take further proceedings, with this limitation: that, in so doing, it should be controlled and guided by the rules of law established by this court in its decision. That certainly did not preclude the parties from raising questions, if any existed, which had not been submitted to, and had not received the consideration of, this court. It should be observed, however, that a very considerable portion, at least, of the objections filed since the decision of the former appeal, are, in substance, but repetitions, with various changes of phraseology, of the identical objections formerly urged; or a statement, in more ample form, and largely by way of argument, of the grounds upon which said objections are sought to be based. It is manifest that mere change or amplification of the statement of an objection, so long as the objection itself remains in substance the same, cannot take it out of the rules of law already established in this case. It is only as to those which are substantially new that the case is still open for consideration.

The first of the objections recently filed, and now insisted upon, is that the ordinance under and by virtue of which said special tax is sought to be enforced is unconstitutional, illegal, and void; the ground of the objection, when shorn of its verbiage, being, simply, that the tax which it imposes is not assessed upon ‘contiguous property,’ within the meaning of the constitution. The levy ordered by the ordinance was upon the property ‘abutting’ upon the streets and alleys to be paved, such levy to be in proportion to the frontage of the property on such streets and alleys. The point now made is that the ‘abutting property’ is not the ‘contiguous property’ upon which section 9 of article 9 of the constitution permits special taxes for improvements to be levied. While the constitutional question was not discussed in this precise aspect in our former opinion, that aspect of the question was necessarily involved in the decision, and is therefore as completely settled as it would have been if it had not been made the subject of special discussion. If this were otherwise doubtful, it becomes very apparent upon examination of the long line of decisions cited in the opinion. In those decisions the constitutionality of special taxes is considered in all its aspects, including the one above suggested, and is so thoroughly and irrevocably settled as to preclude all further argument.

The objection is that the special tax in question has not been legally levied. The point of the objection seems to be that the provisions of the ordinance are only preliminary to the imposition of the tax, but do not, in legal effect, levy the tax. The ordinance, after ordering the construction of pavements of a certain description upon certain specified streets and alleys, and providing for the payment of the expense of paving the street intersections and crossings by general taxation, and also for the payment of the expense of paving the right of way of so much of said streets as were included in the right of way of steam, horse, or street railway companies by such companies, provides and directs as follows: ‘The remainder of the costs of said improvements shall be paid for by special taxation, and for that purpose a special tax, equal in amount to the whole cost of paving that portion of said streets or parts of streets and alleys not included in the intersections and crossings aforesaid, nor in the right of way of any steam, horse, or street railway company, and the cost of...