Lightner v. City of Peoria

• Decision Date: 31 March 1894
• Citation: 150 Ill. 80,37 N.E. 69
• Parties: LIGHTNER v. CITY OF PEORIA.
• Court: Illinois Supreme Court

150 Ill. 80

37 N.E. 69

LIGHTNER

v.CITY OF PEORIA.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from Peoria county court; Samuel D. Ward, Judge.

Petition by the city of Peoria for confirmation of a special tax. Hervey Lightner filed objections, which were overruled. Objector appeals. Affirmed.Jack & Tichenor, for appellant.

John W. Culbertson, City Atty. (W. T. Whiting, or counsel), for appellee.

At the May term, 1892, of the county court of Peoria county, upon petition of the city of Peoria for confirmation of special assessment for the improvement of that part of Main street, in said city, lying between the upper line of Water street and the upper line of Bluff street, a decree was entered confirming such assessment. It appears that on February 2, 1892, the city council of Peoria passed an ordinance for the curbing and paving of that part of Main street, particularly specifying the location, nature, character, and description of the improvement, and providing that the cost thereof, including street and alley intersections, be paid by special taxation upon contiguous property, according to frontage; that said assessment be collected by installments, in accordance with the act of 1891, amendatory of the cities and villages act, approved June 15, 1891, etc.; and appointing commissioners to ascertain and report the cost of such improvement. The commissioners appointed made a report thereof, which was approved by the city council, and the petition to the county court ordered filed. In the county court, commissioners were appointed to levy the reported cost of the improvement upon contiguous property, who, after taking the oath prescribed by the statute, duly made and returned an assessment roll. Appellant filed objections to the confirmation of the assessment, which were overruled, and an order confirming the assessment entered, from which objector appeals. Other facts, necessary to an understanding of the case, are stated in the opinion.

SHOPE, J. (after stating the facts).

This is an appeal from the judgment of the county court of Peoria county confirming the assessment of special taxes upon contiguous property, levied and assessed for the curbing and paving of Mainstreet, in the city of Peoria, from the upper line of Water street to the upper line of Bluff street, in said city. and paving of Main street, in the city of of the distance ordered improved by this ordinance the center of the street is occupied by double street-railway tracks, for another portion by a single street-railway track, while still other parts are not so occupied, and at certain street intersections street-railway tracks cross Main street. By the ordinance the rights of way of the several railway companies on and crossing Main street are expressly excepted out of the improvement required by the ordinance to be made, the cost whereof is to be assessed upon contiguous property; and the assessment, it is conceded, was so made. It is stated, and not controverted, that by the ordinance of the city granting the franchises to the railway companies they are required to pave, etc., their right of way.

That the right of way of the railways in the street proposed to be improved is contiguous property, and falls within the designation of property that may be specially taxed, was held in Kuehner v. City of Freeport, 143 Ill. 92, 32 N. E. 372. In this case it may fairly be presumed that street railways were required to pave their right of way. The exclusion of such rights of way from the pavement, etc., to be paid for by the special taxation of contiguous lots, blocks, and tracts of land, has been so frequently held not to invalidate the ordinance that it can no longer be considered an open question. Enos v. City of Springfield, 113 Ill. 65;Wilbur v. City of Springfield, 123 Ill. 395, 14 N. E. 871;Green v. City of Springfield, 130 Ill. 515, 22 N. E. 602; Kuehner v. City of Freeport, supra; City Ry. Co. v. City of Freeport (opinion filed March 9, 1894), 38 N. E. 137. It cannot be said that the railway right of way has a frontage upon the street, as that term is applied to abutting property; and, while it is to be treated as contiguous property, and be required to contribute to the burthen of local improvements, some apportionment of the tax upon it must be adopted other than by frontage. In Kuehner v. City of Freeport, supra, it was said: ‘Whether the railway shall pay for paving between the tracks, as is sometimes done, or more or less, or whether the levy shall be of a share or portion of the whole cost, and, if so, how much, rests in the discretion of the municipal authorities, to be reasonably exercised.’ By reference to the cases cited, it will be seen that the levy of a special tax to pay for the improvement, not included within the right of way, and excluding it from the levy upon abutting property, has uniformly been sustained. In the absence of anything showing to the contrary, it must be presumed that the municipal authority has exercised its discretion reasonably, and required of the railway companies payment of their just and equal proportion of the cost of the local improvement.

It is objected that the assessment is void, for the reason that the ordinance provides for the tax to be collected in installments, as it is provided special assessments for local improvements may be paid by the act of the legislature of July 1, 1891 (paragraph 170a, p. 208, 3 Starr & C. Ann. St.); that act applying to special assessments, as it is said, and not to special taxes levied for local improvements. The act of 1872 entitled ‘Cities and Villages' invests corporate authorities of cities and villages with power to make local improvements by special assessment or special taxation. Section 2, art. 9, 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. Section 17 provides that, when the ordinance prescribes that the improvement shall be made by special taxation of contiguous property, ‘the same shall be levied, assessed and collected in the way provided in the sections of this act providing for the mode of making, levying, assessing and collecting special assessments.’ By an act of the legislature approved and in force April 29, 1887 (Laws 1887, p. 104), article 9 of the cities and villages act of 1872 was amended by adding thereto certain sections, being from 55 to 67, inclusive. Section 55 provided for the division of special assessments for local improvements in cities and villages into installments, and prescribing the mode for such division and payment of the installments. The other sections are unimportant to be considered here. Thereby section 55 and the subsequent sections became incorporated into, and formed part of, said article 9, prescribing ‘the mode of making, levying, assessing and collecting special assessments.’ Thereafter the mode of levying, assessing, and collecting special assessments, if so prescribed in the ordinance, might be by dividing them into installments, payable as provided in said section 55. The act of 1891 is an amendment of said section 55 of article 9, as amended in 1887, and July 1, 1891, became a part of said article 9, providing for the mode of making, levying, and collecting special assessments for local improvements by their division into installments. By virtue of the provisions of section 17, before quoted, said act became applicable to special taxation of contiguous property for local improvements. The same rule has been announced in English v. City of Danville, 36 N. E. 994, in which the opinion has been filed at this term. We are of opinion that it was competent for the municipal authorities to provide by ordinance, as they have done, for the payment of the special taxes assessed in installments.

The ordinance provides, in the improvement contemplated, that the curbing on each side of the street shall be set 20 feet from the lot line, curbing at street intersections out to the line of the street; thereby, except at intersections of streets, requiring a roadway to be paved 60 feet wide, less railway rights of way, and at such intersections extending the pavement the full width of Main street, or 100 feet. It is objected that the city was without power to assess the whole cost of the improvement upon the contiguous property, but should have assessed a pro rata share of the tax upon the streets and alleys intersecting Main street, treating such streets and alleys as contiguous property. The contention is without merit. By the ordinance a taxing district was created, in which the benefits flowing from the proposed improvement were found by the legislative authority of the city to diffuse themselves in equal proportions upon the property within the district liable to taxation. The district comprised all of the property contiguous to the improvement subject to special taxation for making the same. Davis v. City of...