Goodrich v. City of Minonk , 62 Ill. 121 ( 1871 )

Mr. Justice Breese

delivered the opinion of the Court:

This is an appeal from the Circuit Court of Woodford County to reverse a judgment rendered against appellant’s lot of ground in the city of Minonk, assessed for the improvement of a certain ditch theretofore constructed by the city authorities. Appellant had due notice of the assessment and of all the preliminaries required by the statute to authorize a judgment. By the act of 1854, Session Laws, section 2, it is provided, in all cases where assessments have been or may hereafter be made by the corporate authorities of any town or city in this State, on any lot or real estate in such town or city, for the purpose of improving any street, sidewalk, or alley in front of such lot or real estate, or for any purpose whatever, either by ordinance, resolution, or other proceeding, and such assessment is not paid within the time fixed by the order, resolution, or ordinance making the assessment, the corporate authorities may apply to the county court for judgment against the lot for the amount of the assessment and costs.

An order was duly entered of record by the city council on the 3d of September, 1869, directing that “ the main ditch running on the east side of Chesnut street, from the calaboose, north to Stoddard and Newton’s crossing, be completely leveled with sumps, and tiled with twelve-inch tile, and that upon completion thereof an assessment be made upon the lots, premises, and real estate in said city benefited thereby, for the special benefits to said lots, premises, or real estate, arising from said ditch.

The sum of twenty dollars was assessed on appellant’s lot, and he complains that his lot did not adjoin this ditch, and seems to confound this improvement as ordered by the city council with the improvement of a street, sidewalk, or alley, which the lot to be assessed, must adjoin or front upon.

This is a mistaken view. The power to make this assessment is fully conferred by that portion of the act of 1854, which we have quoted.

Appellant next complains that the real estate of the Illinois Central Railroad Company, which this ditch passes through, was not assessed.

The assessment was not for making the ditch, but for improving it, and the record does not show the real estate of this company was specially benefited by this improvement.

Appellant, however, insists that he offered to prove by a competent witness, that this railroad company was greatly benefited by the construction of this ditch, and the court rejected the testimony.

When it is recollected that the assessment was for tiling this ditch and leveling it with sumps, any testimony as to benefits arising from its original construction was irrelevant, and was properly rejected.

It is further complained that the collector’s notice of application for judgment in the county court was insufficient, and the court could not legally enter an order for the sale of the lot, the notice not having stated that an order of sale would be asked for. Reference is made to Charles v. Waugh, 35 Ill, 315. In that case there was no personal notice upon the owner, nor appearance by him. In this case there was personal notice, an appearance entered, and objections filed. Appellant was in court, subject to any judgment the court might pronounce. The act of 1854 leaves it discretionary with the corporate authorities as to the time and kind of notice of the application to the county court, and therein differs from the general revenue law, which gives the form of the notice, and under which the case of Charles v. Waugh, supra, was decided.

It is further objected by appellant that after the testimony was closed, and the argument had commenced, the court, against the objection of appellant, allowed the plaintiff to introduce the charter of the city of Minonk.

This was merely matter of discretion with the court, with which we would not interfere. Young v. Bennett, 4 Scam. 43.

It is also insisted that the court erred in receiving in evidence the notice and affidavit of Morris, as to the posting of notices for the meeting of the commissioners to make the assessment.

Under the act of 1854 full power is given the city council to fix, by ordinance or resolution, the time and kind of notice of assessment. The seventh section of the ordinance passed by the city council on this subject prescribes the form anddiind of notice, and provides “that the commissioners shall attach to the assessment roll an affidavit of the giving of said notice as aforesaid.”

When this affidavit is attached to the assessment roll, it necessarily becomes a part of it, and when the roll was in evidence the affidavit of posting the notice ivas at the same time in evidence, and being attached to the roll by the commissioners it became, under the authority of the City of Ottawa v. Macy et al. 20 Ill. 421, to all necessary intents, a certificate.

But independent of all this there might have been testimony before the court of the kind required by appellant. Some witness may have been sworn to the fact of posting the notice. The bill of exceptions does not purport to contain all the evidence, and we have a right to presume the court had evidence before it of a witness who performed the act of posting.

It is insisted by appellant, that the record does contain all the evidence and this is manifested by the certificate of the judge who tried the cause, given after he signed the bill of exceptions, and without notice to the opposite party, and in vacation.

This certificate is no part of the record, and can not be used to enlarge the bill of exceptions or change it in any way; and it can not be considered by this court.

The party taking the bill of exceptions, on discovering its imperfection, should, on proper notice, apply in open court to have it amended. The amended record could then be filed in this court. Wallahan v. The People, 40 Ill. 103

The other objections as to receiving in evidence the assessment roll and the delinquent list are answered by what has been said as to the notice. The delinquent list is nothing more than the- collector’s return, which he makes under his official oath, and is conclusive of the facts which he is required to state in it.

A special assessment not being a tax, the article of the ordinance cited by appellant has no application.

It has been uniformly held by this court, that the collector’s warrant, and return thereon, are conclusive of the facts stated in them. City of Ottawa v. Macy, supra; Taylor v. The People, 2 Gilm. 351.

We see nothing in any other objection urged demanding special notice. It was competent to prove by the city clerk that since the return of the warrant to his office, and before judgment, appellant had not paid the assessment against his lot; but the fact of payment should be made out by appellant himself.

We fail to perceive on what ground it can be insisted that the judgment against appellant was not in accordance with the law and the evidence. The assessment in question was not made on the basis of prospective benefits, but was made to pay for work already done in obedience to an ordinance of the city council, which they had ample authority to pass.

From a careful consideration of the points made, and of the evidence, we can discover no error in the proceedings, and accordingly affirm the judgment.

Judgment affirmed.