People ex rel. Hanberg v. McMahon , 224 Ill. 284 ( 1906 )

Mr. Justice; Wilicin

delivered the opinion of the court:

At the June term, 1906, of the county court of Cook county the county collector made application for judgment and order of sale against appellee’s property for a delinquent special assessment to pay the cost of a vitrified tile-pipe sewer in Waveland avenue, in the city of .Chicago. Appellee entered a special appearance and questioned the jurisdiction of the court both as to his person and the subject matter of the suit. One objection was the failure of the board of local improvements to comply with section 84 of the Local Improvement act, in that the certificate of that board filed in the county court did not contain a statement that the improvement as constructed conformed substantially to the ordinance; also that no.notice was given to the property owners of the application for the rebate order. The objection that the certificate did not contain a statement that the improvement conformed substantially to the ordinance was overruled, but the court held that the rebate order was void because no notice had been given to the property owners interested.

The record shows that the first voucher was dated October 3, 1905, and the certificate of this fact was filed by the board of local improvements in the county court on October 11, 1905. On December 8, 1905, the board of local improvement's filed its certificate, under section 84, that the original assessment was for $1005 and the actual cost of the work was $971.49, and an order was entered rebating the assessment pro rata accordingly. It is claimed that this order is void because it was entered without notice to the property owners, and hence the court had no jurisdiction either as to the subject matter or the person of appellee.

Section 84 of the Local Improvement act (Hurd’s Stat. 1905, p. 425,) provides that within thirty days after the final completion of the work the board of local improvements shall cause the cost thereof to be certified, in writing, to the court, together with an amount estimated by the board to be required to pay the accruing interest on bonds or vouchers issued to anticipate the collection, and thereupon, if the total amount assessed for said improvement exceeds the cost of the same, all of said excess shall be abated and the judgment reduced proportionately. It further provides that in every assessment proceeding in which the assessment shall be divided into installments it shall also be the duty of the board of local improvements to state in said certificate filed in the county court whether or not said improvement conforms substantially to the requirements of the original ordinance, and make application to the court to consider and determine whether or not the facts stated in said certificate are true, and thereupon it shall be the duty of the court to fix a time and place for a hearing upon the said petition and enter the same of record, the time of hearing to be not less than fifteen days after the filing of such certificate and application. It also provides for the giving of notice to the persons interested and for a hearing at the time set by the court.

It will be observed that by this section a distinction is made between assessments which are payable in one payment and those payable in two or more installments. If the assessment is payable in installments, then the certificate of the board of local improvements must not only state the amount of the actual cost, but also that the improvement has been completed in substantial compliance with the ordinance, whereupon a public hearing shall be had. When the assessment, however, is payable in a single payment there is no requirement in that section that the improvement shall be in compliance with the ordinance, nor is it necessary that there should be a public hearing. The record in this case shows that the improvement was to be paid for in one payment, and therefore when the statement of the cost and the date of the issue of the first voucher was filed in the county court it was the duty of the court to enter the rebate order without notice to appellee. This being a statutory proceeding, it was sufficient that the board of local improvements should comply with the statute.

Our attention is called to Case v. City of Sullivan, 222 Ill. 56, People v. Cohen, 219 id. 200, and Gage v. People, id. 634, which are said to sustain the decision of the county court. In the first two of these cases the assessments were payable in installments, and in the latter all but one were payable in installments, and as to the one payable in a single payment the board of local improvements failed to file any certificate whatever in the county court, as required by section 84. None of the cases bear upon the question involved in this case.

The county court erred in sustaining appellee’s objections, and its judgment will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed. D , , , ,

D , , , , Reversed and remanded.