Kuehner v. City of Freeport

• Citation: 143 Ill. 92,32 N.E. 372
• Parties: KUEHNER et al. v. CITY OF FREEPORT.
• Decision Date: 31 October 1892
• Court: Illinois Supreme Court

143 Ill. 92

32 N.E. 372

KUEHNER et al.

v.CITY OF FREEPORT.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from Stephenson county court; GEORGE WOLF, Judge.

Proceedings for special assessment in the city of Freeport. The assessment was confirmed, over the objections of Darius Kuehner and others, and they appeal. Reversed.M. Stoskopf, J. S. Cochran, and H. C. Hyde, for appellants.

J. H. Stearns, M. Marvin, and James I. Neff, for appellee.

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

The city council of the city of Freeport passed an ordinance providing for the grading, curbing, and paving of parts of certain streets of the city. The cost of making the contemplated improvement was provided for by the third section of the ordinance, as follows: ‘Sec. 3. That the cost of the local improvement contemplated by this ordinance, together with the cost of making, levying, and collecting the cost of such local improvement, shall be made and paid as follows: The city of Freeport shall pay from and out of its general fund appropriated for street improvement purposes the entire cost of the new curbing (exclusive of setting the same) which is by this ordinance ordered placed along the line of such local improvement, and shall also pay from and out of its general fund appropriated for street improvement purposes the entire cost of the improvement of the space or spaces included within the intersections of those parts of the aforesaid streets hereby ordered to be improved, including therein the cost of the improvement of that part of Stephenson street included within the lines of Second street, produced to the center line of said Stephenson street, and including also the cost of the improvement of that part of Taylor avenue included within the lines of Third street, produced to the center lines of Taylor avenue; and by a special assessment of the property, franchise, and right of occupancy of the Freeport Street Railway Company to the extent that such property, franchise, and right of occupancy will be specially benefited by said local improvement, and the residue and remainder of the entire cost of said local improvement, (except the cost of new curbing,) including the cost of setting such new curbing, and the cost of making, levying, and collecting the cost of said local improvement contemplated hereby, shall be made and paid by special taxation of the lots, parts of lots, tracts of land, and real estate abutting upon and contiguous to each line of said Taylor avenue from the westerly line of the main track in the right of way of the Chicago, Milwaukee & St. Paul Railway Company to its intersection with Stephenson street, and upon each line of Stephenson street between Taylor avenue and the easterly line of Walnut street, and upon each line of said Galena street between the westerly line of the right of way of Chicago & Northwestern Railway Company and the easterly line of Walnut street, and upon each line of all those portions of Liberty, Adams, Mechanic, Chicago, Van Buren streets and Galena avenue which lie between the lines of said Stephenson and Galena streets; and for the foregoing purpose a special assessment of the amount to be paid by general taxation, and of said special benefits, and of said special tax, is hereby ordered to be made in the manner following: The entire cost of the improvement of the space or spaces included within the intersections of those parts of streets herein ordered to be improved and including the cost of improving that part of Stephenson street included within the lines of Second street, produced to the center line of the aforesaid Stephenson street, and including also the costs of the improvement of that part of Taylor avenue included within the lines of Third street, produced to the center line of Taylor avenue, and the cost of all material to be used for curbing in such improvement, shall be assessed against the city of Freeport as the amount to be paid from and out of its general fund appropriated for street improvement purposes; and the property, franchise, and right of occupancy of said Freeport Street Railway Company shall be assessed to the extent that the same will be specially benefited by said local improvement, and said special tax to meet the residue and remainder of the entire cost of such local improvement, (except the cost of new curbing,) including the cost of setting curb stones and of making, levying, and collecting the cost of said local improvement, shall be levied upon the lots, part of lots, tracts of land, and real estate hereby specially taxed, in such manner that the portion of the cost to be assessed thereon shall be borne by said property and real estate in the proportion the respective frontages thereof of the said lots, parts of lots, tracts of land, and real estate on those parts of said streets hereinbefore ordered to be improved, be to the entire frontage on said local improvement, exclusive of said street intersections.’

By that ordinance, and an ordinance subsequently passed, amendatory of the former, a committee of the council was appointed as commissioners to make and report an estimate of the total cost of such improvement, and it was provided that upon approval thereof by the city council the city attorney should file in the court a petition ‘for proceedings to make the general tax aforesaid, and the special assessment aforesaid, and the special tax aforesaid, according to law.’ The commissioners appointed made and returned an estimate of total cost, including expense of collection, as being the sum of $49,692.50, which was approved. Thereupon the petition in this case was filed in the county court, reciting the original and amendatory ordinances, the report of said commissioners, and praying that assessment be made conformable to said ordinance, etc., and for the appointment of commissioners, etc. The court appointed commissioners, who, after taking the required oath, made and returned into court their report, denominated an ‘assessment roll,’ in the certificate to which occurs the following: ‘That they examined the locality where said improvement was to be made, and that portion of the property of said Freeport Street Railway Company which will be specially benefited thereby, and did estimate what proportion of the total estimated cost of said improvement would be of benefit to the property, franchise, and right of occupancy of said company, which they estimated and assessed at three hundred and eighty-eight dollars; that they calculated the proportion of the total estimated cost of said improvement assumed by said city, * * * and found said proportion of said cost to amount to said ten thousand eight hundred fifty-four 50-100 dollars, and assessed said sum against said city of Freeport; that they therefore deducted from the total estimated cost of said improvement, to wit, forty-nine thousand, six hundred ninety-two 30-100 dollars, said sums so assessed against said street railway company and said city of Freeport, and apportioned the remainder of said estimated cost, to wit, thirty-eight thousand, four hundred forty-nine 80-100 dollars, among, and assessed the same against, the said several tracts and parcels of land fronting upon said improvement, in the proportion which the respective frontage of each tract upon said improvement bears to the entire frontage upon said improvement, exclusive of said intersections.’ Upon return thereof appellants appeared, and filed numerous objections to its confirmation by the court, of which it is important to here notice only the following: (1) Because the ordinance provided for raising the cost of the improvement by general taxation, by special assessment, and by special taxation,-a combination of three methods, which could not be legally adopted in the same ordinance for the same improvement. (2) Because the city council did not in the ordinance, or in any way, determine and fix the sum to be assessed as a special tax, or give any data by which said sum could be legally determined or fixed by the commissioners. The objections were severally overruled, and judgment of confirmation entered, from which this appeal is prosecuted.

SHOPE, J., ( after stating the facts.)

The city of Freeport is organized under the general law for the incorporation of cities and villages, (chapter 24, Rev. St.,) and is invested with the power therein prescribed. The questionpresented by this record, and regarded as controlling, is whether a city or village, under that act, may combine, in making a single improvement, special taxation, and special assessment. Section 1, art. 9, of the general incorporation act, confers power upon the corporate authorities of cities and villages to make ‘local improvements by special assessment or by special taxation, or both, of contiguous property, or by general taxation, or otherwise, as they shall be ordinance prescribe.’ The next section requires that the ordinance providing for making the improvement shall ‘prescribe whether the same shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both.’ It is conceded, as it must be, that the power of the city is measured by this legislative grant, and it therefore becomes important to ascertain the legislative intent, and whether the power claimed has been conferred. By the constitution of 1870 of this state the rule of uniformity in the imposition of taxes theretofore existing (sections 2, 5, art. 9, Const. 1848; Chicago v. Larned, 34 Ill. 203;Ottawa v. Spencer, 40 Ill. 211) was retained, and again promulgated, (section 1, art. 9,) with the exception contained in section 9 of article 9, as follows: ‘The general assembly may vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes all municipal...