Murphy v. People ex rel. Weinennette

• Decision Date: 22 March 1887
• Citation: 120 Ill. 234,11 N.E. 202
• Parties: MURPHY and others v. PEOPLE ex rel. WEINENNETTE.
• Court: Illinois Supreme Court

120 Ill. 234

11 N.E. 202

MURPHY and others

v.PEOPLE ex rel. WEINENNETTE.¹

Supreme Court of Illinois.

March 22, 1887.

Appeal from county court, Peoria county.

Jack & Tichenor and McCulloch & McCulloch, for appellants.

I. C. Pinckney, City Atty., ( H. W. Wells, of counsel,) for appellee.

CRAIG, J.

This is an appeal from a judgment of the county court of Peoria county, rendered against certain lots, to pay a special assessment for the improvement of Hamilton street, in the city of Peoria. Various objections were filed by appellants to the application for judgment, which were all overruled, and judgment rendered as prayed for by the collector. On the application to confirm the assessment, we held in Murphy v. City of Peoria, 9 N. E. Rep. 895, (September term, 1886,) that the notice, as appeared from the affidavit of service, was not sufficient to confer jurisdiction of the person of those who did not appear, viz., Mrs. Norris Pitt, Belle C. Taffiny, August Siebold, W. G. Bonham, E. G. Callegan, D. J. Callegan, and W. J. Dobbins. Hannah M. Powell also occupies the same position. The rights of these parties have not been affected by the judgment of confirmation, and, on the application for judgment against these lands, they have rights which cannot be annulled by those who appeared in the application to confirm the assessment. Section 30 and 31 of article 9 of the statute provide that objection may be filed and a hearing had on application for confirmation of an assessment. Section 39, art. 9, c. 24, Rev. St., provides that ‘said report, [ i. e., of the local to the county collector,] when so made, shall be prima facie evidence that all forms and requirements of the law in relation to making said return have been complied with, and that the special assessments mentioned in said report are due and unpaid. And, upon the application for judgment upon such assessment, no defense or objection shall be made or heard which might have been interposed in the proceeding for the making of such assessment, or the application for the confirmation thereof.’ Under sections 30 and 31, supra, full opportunity is given the land-owner to interpose any objection which may show the invalidity of the proceedings anterior to the application for a confirmation of the assessment. And, under the plain language contained in section 39, the judgment of confirmation is conclusive. This is not, however, a new question in this court.

In Schertz v. People, 105 Ill. 27, the question arose whether a judgment of confirmation was conclusive; and, in disposing of the question, we held if, upon an applicationfor the confirmation of a special assessment, the court has jurisdiction to render the judgment of confirmation, such judgment will conclude the land-owner from questioning any of the proceedings had prior thereto, on a subsequent application for a judgment and order for sale of the premises. In the case under consideration we entertain no doubt in regard to the jurisdiction of the court as to all of the parties who appeared, and, under the statute and former decisions of this court, that judgment is conclusive in regard to all questions which might have been raised affecting the validity of the proceedings. So far, therefore, as all of the appellants are concerned who appeared on application for confirmation of the amount, they are concluded in regard to all proceedings anterior to the confirmation. As to the other appellants who were not notified of the application for judgment of confirmation, as provided by the statute, and who are not concluded by that judgment,-we will consider the questions raised involving the validity of the proceedings.

Sections 1 and 2 of the ordinance of the city under which the assessment was made are as follows:

‘Section 1. That Hamilton street, in said city, from the north-west side of Monroe street to the east side of North street, be graded, graveled, and improved the whole of said distance, and of a width, between the lines of curb-stones on each side thereof, sixty-four feet, in the following manner, viz.: Said street, from the north-west side of Monroe street to the north-west side of Perry street, the whole of said distance, of a width of sixty-four feet between the lines of curb-stone on each side thereof, with good gravel of the thickness of fifteen inches, the foundation of good coarse gravel, the surface of good clean gravel, and to be well rolled with a heavy roller; from the north-west side of Perry street to the east side of North street, and of a width of twenty feet on each side thereof, shall be graded and graveled with good gravel, of a thickness of fifteen inches,-the foundation to be of good coarse gravel, the surface of good clean gravel, and to be well rolled with a heavy roller. The center of said street from Perry to North street as aforesaid, except at street intersections, and of a width of twenty-four feet, shall be graded and sodded with good sod, and there shall be constructed on each side of such grass plat or park cobble stone or concrete gutters, three feet in width, the whole distance of such grass plat or park.

‘Sec. 2. That a sewer shall be constructed in said street of eighteen-inch vitrified pipe, from the north-west side of Monroe street to the north-west side of Globe street, and of fifteen-inch vitrified pipe from the north-west side of Globe street to the east side of North street.’

Section 3 provided that the improvement should be made by special assessment upon all property especially benefited.

Under section 6 of the ordinance commissioners were appointed to make an estimate of the costs of the improvement. The commissioners made a report submitting an estimate of the costs of the improvement. The city council then directed a petition to be filed in the county court, which was done, for the appointment of commissioners to make the assessment as required by the statute. The court appointed the commissioners, who made the assessment and filed their report, which was finally confirmed in the county court.

Before alluding to certain evidence in regard to a general system of sewerage introduced by appellants, if may be proper to state that the city of Peoria is acting under a special charter enacted in 1869, (2 Laws 1869, p. 149.) The city, however, has adopted article 9 of the general incorporation act in relation to cities, villages, and towns. The charter authorizes the city council to lay off the city into districts, to be drained by principal, lateral, or tributary sewers and drains, having reference to a general plan of drainage by sewers and drains for the whole city. It also provides for levying and collecting taxes within such districts, for the purpose of carrying out such general system of drainage. In 1871 the legislature passed an act which provides that the legislative authority of any such city which now has, or may hereafter have, established a system of sewerage for such city, shall have power annually to levy and collect a tax upon the real and personal estate of any such city, not to exceed one mill on a dollar, for the extension and laying of sewers therein, and the maintenance of such sewers, which shall be known as the ‘ sewerage fund tax,’ and shall be levied and collected in the same manner that other general taxes of any such city are levied and collected. Laws 1871, p. 754. In 1883 this statute was re-enacted, with power to levy a tax not exceeding three mills on the dollar. Laws 1883, p. 68. Under the act of 1871, the city of Peoria, in 1878, adopted a general system of sewerage for the whole city. Section 3 of the ordinance provides: ‘The general plan and system of sewerage prepared by the city engineer, under the direction of the special committee on permanent grade and sewerage, and shown upon the...