City of Ottawa v. Chicago & Rock Island Railroad , 25 Ill. 43 ( 1860 )

Breese, J.

This is a writ of error to bring before this court the decree of the Circuit Court of LaSalle county, sustaining an injunction obtained by the defendants against the collection of an assessment levied by the city of Ottawa on the property of the defendants to defray the expenses of constructing a sewer in said city, and making the injunction perpetual. The proceedings on the part of the city appear to be fair and regular, and in conformity with their charter, and the notice given to persons interested is in conformity with the ordinance of the city on that subject.

As we said in the case of McBride v. The City of Chicago, 22 Ill. 577, which is like this, so we now say, that by the charter of the city of Ottawa, ample opportunity was .given to the defendants to be heard as to their objections, legal or equitable, before the city council on the return by the commissioners of the assessment, who can revise and correct the assessment, or confirm or annul it in their discretion, and direct a new assessment to be made. If a party lies by, having notice, and fails to present his objections to the city council, he must be held in a court of equity to have waived all irregularities, and cannot in that court have a hearing which he has failed to avail of at law. If, as seems to be complained, by reason of the general terms in which the notice to persons interested in the assessment was published, and thereby the party had not notice, when the proceeding did come to his knowledge, he could have removed the record of the proceedings from before the city council to the Circuit Court by certiorari, and if they were defective in a substantial matter they would be quashed. An ample and complete remedy at law being within the power of the party, a court of equity ought not to take jurisdiction for these irregularities or even for want of a compliance with some material requirement of the law.

The Circuit Court should have dissolved the injunction and dismissed the bill, and that will be the order and decree of this court.

In the case at law between the same parties, and submitted with this case, wherein the same questions are involved, the judgment of the court below is reversed and the cause remanded, so that the city may proceed to collect the assessments.

Decree reversed.