People ex rel. Peterson v. Omen

• Citation: 124 N.E. 860,290 Ill. 59
• Decision Date: 03 December 1919
• Docket Number: No. 12320.,12320.
• Parties: PEOPLE ex rel. PETERSON, County Collector, v. OMEN.
• Court: Supreme Court of Illinois

290 Ill. 59

124 N.E. 860

PEOPLE ex rel. PETERSON, County Collector,

v.OMEN.

No. 12320.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 3, 1919.

Appeal from Bureau County Court; J. R. Prichard, Judge.

Application by the People, on the relation of H. B. Peterson, County Collector, for judgment and order of sale for taxes against Charles A. Omen. From the judgment and order of sale, defendant appeals. Affirmed.James J. Conway, of Ottawa, for appellant.

Josef T. Skinner, State's Atty., of Princeton (Carey R. Johnson, City Atty., of Princeton, of counsel), for appellee.

CARTER, J.

Appellant, Charles A. Omen, having failed to pay the first installment of the special taxes levied against his property under two special taxation proceedings brought by the city of Princeton, application was made by the treasurer of Bureau county to the June term, 1918, of the county court for judgment and order of sale against said property. The objections in the two proceedings were consolidated. The county court overruled the objections, and gave judgment and order of sale against the property.

One of the two special taxation proceedings was for the paving of Euclid avenue, in said city; the other was for the paving of portions of Pleasant street, Boyd avenue, and North street. There was also another special taxation proceeding for the paving of West Peru street, in said city. These three improvements were made at the same time and by the same contractor, but appellant has no property affected by the West Peru street improvement. The estimated cost for paving Euclid avenue was $55,800, for paving Pleasant street, Boyd avenue, and North street $56,695, and for paving West Perustreet $27,505. The improvements for paving Euclid avenue and West Peru street were contiguous, but it appears that the other improvement was not contiguous to either of the two just named. The estimated cost of all of these three improvements amounted to approximately $140,000. The estimated cost of paving West Peru street, added to the cost of either of the other improvements, would not amount to $100,000, while the estimated cost of paving Euclid avenue, added to that of Pleasant street, Boyd avenue, and North street, would be over $100,000.

Counsel for appellant challenges the right of the people to collect special taxes for the two improvements in which appellant is interested, because, he argues, both improvements constitute a single improvement, of which the estimated cost would be more than $100,000. He also argues that the ordinance was not published in accordance with the provisions of section 11 of the Local Improvement Act (Hurd's Rev. St. 1917, c. 24, § 517). There is no evidence in the record as to how far apart these two improvements were. They may have been miles apart, so far as the record indicates. The situation of the property against which special taxes were levied should be considered in determining whether such work ought to be embraced in a common scheme as one improvement or should be divided and separated into different improvements. City of Springfield v. Green, 120 Ill. 269, 11 N. E. 261. The limits of the districts to be taxed for local improvements rest in the discretion of the city council, and the courts will interfere only to correct a clear abuse of that discretion. Davis v. City of Litchfield, 145 Ill. 313, 33 N. E. 888,21 L. R. A. 563.In passing an ordinance to make local improvements, the city council is clothed with discretion to determine what improvement is required, its nature and character, when it shall be made, and the manner of its construction. Such discretion, when honestly exercised, is not reviewable by the courts. Ton v. City of Chicago, 216 Ill. 331, 74 N. E. 1044. The county court could have determined at the time of the confirmation in these special tax proceedings, had the question been raised, that there had been an abuse of discretion in this regard, if such there was.

In an application for judgment and order of sale the objection here made is a collateral attack upon the judgment of confirmation, and also a collateral attack on the judgment confirming the certificate of the board of local improvements of the final completion and acceptance of the work. In a collateral proceeding every presumption is in favor of the validity of the judgment attacked, and want of jurisdiction to enter such judgment must appear on the face of the record, when relied on as a defense in a proceeding in the county court for judgment and order of sale for delinquent assessments. People v. Culver, 281 Ill. 401, 117 N. E. 1044. There is no proof in this record as to these two improvements being of such a nature that they ought to be made a part of one improvement, and it will not be presumed, without proof, that the municipal authorities had improper motives in separating the improvements into two improvements, for the purpose of avoiding section 11 of the Local Improvement Act, or for any other reason. Furthermore, there can be no question that the county court, in the original confirmation proceedings, had jurisdiction of the persons and subject-matter of the proceedings, and therefore the question here sought to be raised cannot be raised in a collateral attack. Miller v. Rowan, 251 Ill. 344, 96 N. E. 285;People v. Talmadge, 194 Ill. 67, 61 N. E. 1049;People v. Seelye, 146 Ill. 189, 32 N. E. 458; People v. Culver, supra. This being so, it is immaterial, on this point, whether section 84 of the Local Improvement Act (Hurd's Rev. St. c. 24, § 590), which provides for the hearing by the county court as to whether the work has been completed in substantial compliance with the contract, is unconstitutional, as urged by counsel for appellant. The principal argument of counsel seems to be directed against the constitutionality of this act because of the action of the municipal authorities in separating these improvements; but as he argued on some other grounds the unconstitutionality of section 84, we deem it necessary to discuss that question also.

Under section 84 it is provided that within 30 days after the final completion and acceptance of the work by the municipal authorities the board shall cause the cost thereof, and other details, to be certified in writing to the court in which the assessment was confirmed. That section requires that it shall be the duty of the municipal authorities ‘to state in said certificate whether or not the said improvement conforms substantially to the requirements of the original ordinance for the construction of the improvement, and to make an application to said court to consider and determine whether or not the facts stated in said certificate are true.’ (Hurd's Stat. 1917, p. 515), and thereupon the court to which said application has been made shall fix a time and place for hearing, and after giving due notice shall proceed to hear any objections that may be made to the application of municipal authorities to approve such certificate; that the certificate shall be prima facie evidence that the matters and things stated therein are true, and that if any part of the same is controverted by objections the court in a summary manner shall hear and determine the same and enter an order according to the facts; that such order shall be conclusive upon the parties, no appeal therefrom or writ of error thereto being allowed to review the same. This court held this statute constitutional in People v. Cohen, 219 Ill. 200, 76 N. E. 388, and that holding has been, in effect, approved by this court in Martin v. McCall, 247 Ill. 484, 93 N. E. 418,Village of Niles Center v. Schmitz, 261 Ill. 467, 104, N. E. 143, and Nitsche v. City of Chicago, 280 Ill. 268, 117 N. E. 500.

Counsel for appellant seems to argue that section 84 is unconstitutional, because it denies the right of appeal or review of the court's judgment on writ of error. A statute is not unconstitutional on such ground. 12 Corpus Juris, 1293. Litigation must end somewhere, and the Legislature has the right to end it in the trial court, in a matter of this kind, if it sees fit. The constitutionality of the statute on this point was squarely decided in People v. Cohen, supra, and, by inference at least, in the other cases already referred to.

The real argument of counsel for the appellant as to the unconstitutionality of this statute is that section 84 only provides that the ordinance is to be ‘substantially performed’; that in order to be constitutional it should have been provided that the ordinance was to be literally or entirely performed or complied with; that the word ‘substantial’ means that the ordinance need only be complied with according to the particular idea of the man who at that time may be sitting as judge; that to hold this provision of said section constitutional is to deprive the property owner of due process of law as that term should be understood in the state and federal Constitutions, and as the Fourteenth Amendment as to due process of law has been construed by the federal Supreme Court. We cannot agree with the argument or conclusion of counsel for appellant on this question. A substantial compliance or performance means a compliance with the essential requirements of an ordinance. Fitzgibbons v. Galveston Electric Co. (Tex. Civ. App.) 136 S. W. 1186. Substantial performance of a contract means performance in all the essential elements necessary to the accomplishment of the purpose of the contract. Manning v. School District, 124 Wis. 84, 102 N. W. 356. ‘Substantial’ means in substance; in the main; essential, including material or essential parts. See authorities cited in 4 Words and Phrases, Second Series, pp. 750, 751. It has been said by this court that--

‘In building contracts a literal compliancewith the specifications is not necessary to a recovery by the contractor. A substantial performance in good faith is sufficient.’ Keeler v. Herr, 157 Ill. 57, 41 N. E. 750;Evans v. Howell, 211...