McBride v. City of Chicago.

WALKER, J. Numerous objections are urged, to reverse the decree of the court below dissolving the injunction and dismissing appellant's bill. These objections are to the mode of exercising a power, with which the appellees were clearly invested, by their charter. It authorizes the Common Council to open, widen and extend streets within the city limits, and to appoint commissioners to ascertain and assess the damage and recompense due the owners of lands affected by such improvement; and, at the same time, to determine what persons will be benefited by such improvement, and to assess the damages and expenses thereof, on the real estate of persons benefited, as nearly as may be, to the benefits resulting to each. The objections urged are:

1st. That the notice by the clerk, that the Common Council intended to take and appropriate the land for the purpose of widening said street, is vague and indefinite, no time being therein specified when the Council would act in the premises.

2nd. That at the expiration of the time required by law for giving the notice, the Common Council did not act, nor did they act at all in the matter, either by adjournment or otherwise, until the 12th day of May, 1856, six months afterwards or thereabouts.

3rd. That the commissioners did not, within forty days from the time of their appointment, make their report and return of their actings and doings as such commissioners, they being appointed the 12th day of May and making their return the 30th day of June then next.

4th. That they did not, in fact, act within forty days next after their appointment, as their return shows that they did not act till the 28th day of June, in making their assessment.

5th. That the notice of confirmation of the report of such commissioners was published on the 12th day of July, for the 14th July, and was not in fact acted on until the 18th of August, no order being taken by the council on the 14th of July, nor until the 18th of August.

Upon a careful examination of the works on chancery jurisdiction, as well as reported cases, we are unable to find that a court of equity has ever entertained jurisdiction to enjoin the collection of a tax, when the objection was urged against the jurisdiction. And it is for the plain and obvious reason, that if the tax is illegal and void, the party has his remedy at law, which would be as complete and ample as could be afforded by a court of equity. If the tax is levied without authority, the persons assuming to act are clearly liable; and if in the exercise of authority legally possessed, it is exceeded, or any irregularity occurs, which renders the assessment and tax void, those

McBride v. City of Chicago.

committing the irregularity are liable to the party suffering injury. While an assessment of this character is not a tax, and differs in some respects from it, it is nevertheless in many respects similar. They both proceed to raise money by authority of law from the citizen, without his assent, and are required to proceed upon the basis of equality, either as to benefits conferred, or in proportion to the ability of the person taxed. Uniformity and equality are in each observed, as a principle of justice and duty. They are each of them enforced by summary proceedings and without judgment, based upon indebtedness and without personal service. In each, the process is compulsory and enforced by distress.

These assessments are authorized alone by statute, and the mode of levying and collecting them, is specified by the charter conferring the power. When the commissioners shall have made the assessment and returned it to the Common Council, the clerk is required to give at least ten days' notice by publication, that the assessment has been returned, and that on a day to be named therein, it will be affirmed by the Common Council, unless objections to the same are made by some person interested. Objections may be heard before the Common Council, and the hearing may be adjourned from day to day. The Common Council are given power, in their discretion, to confirm or annul the assessment, or to refer it back to the commissioners. And the 17th section of the sixth chapter of the city charter, gives an appeal to any court of record in Cook county, from the order for opening or widening any street, etc., and opens all questions in such proceeding to hearing on the appeal. It prescribes the mode of trying the case. It also provides that no appeal or writ of error shall lie to the judgment of the court, on the trial.

Ample opportunity is thus given to the party feeling himself aggrieved, to be twice heard. First, before the Common Council on the return by the commissioners, and if not satisfied with their determination, then by an appeal to any court of record, in the county of Cook. And if the party having notice, lies by, and fails to urge a hearing before the Common Council, and fails to take an appeal or remove the record of confirmation by certiorari, to a court of competent jurisdiction, he must be held in a court of equity, to have waived all irregularities, and cannot, by applying to this tribunal, have a hearing, which he has failed to avail himself of at law. If he had no notice, when the proceeding did come to his knowledge, he could have removed the record to the Cook Circuit Court by certiorari, and if it were essentially defective, the order would be quashed. By either the appeal, or certiorari, an ample and complete remedy at law could have been had. And therefore a court of equity

Peck v. City of Chicago. Barker v. Same. City v. Starkweather.

should not assume jurisdiction for mere irregularities, or even for a want of compliance with material requirements of the law.

That a case might occur, as where the injury likely to result from the enforcement of a void assessment would be irreparable, from the irresponsibility of the officers committing the irregu larity, or in a case where the whole proceeding was tainted and vitiated by fraud and corruption, a court of equity might, by either of those means, acquire jurisdiction to inhibit the corporation from executing its order. But in cases where officers, either de jure or de facto are exercising the functions of that office, and the law authorizes them to levy a tax, or a special assessment, a court of equity will not restrain them from acting for a want of regularity in the exercise of the power, while it might entertain jurisdiction where persons are acting neither as officers de jure or de facto, or having no pretense of legal power to levy a tax or make an assessment. But such cases should be clear and free from doubt.

In this case, the various objections to this proceeding could have been fully heard and determined on an appeal, or by writ of certiorari, if the appellant had been disposed to have availed himself of his legal remedies. But failing to do so, we see no reason why a court of equity should, or even if so disposed, could afford the relief sought by the bill. Therefore, the decree of the court below, dissolving the injunction and dismissing the complainant's bill, must be affirmed.

Decree affirmed.

PHILLIP F. W. PECK, Appellant, v. THE CITY OF CHICAGO,

Appellee.

JOSEPH N. BARKER, Appellant, v. THE CITY OF CHICAGO,

Appellee.

THE CITY OF CHICAGO, Plaintiff in Error, v. CHARLES R. STARKWEATHER, Defendant in Error.

FROM COOK COUNTY COURT OF COMMON PLEAS.

Assessments for improvements already made, by parties other than the city, are illegal.

Peck v. City of Chicago. Barker v. Same. City v. Starkweather.

THE bill of exceptions sets forth in substance, that defendants filed the following among other objections, to the rendition of a judgment:

The order of the Common Council, directing that the sum of $18,200 be assessed on real estate of the city of Chicago, deemed benefited by the filling, curbing and paving of Washington street, from the west line of LaSalle street to the east line of Market street, "in accordance with the superintendent's specifications for the same," was made by the Common Council without having adopted or agreed upon any plan, or mode, or specification for said improvements, but the same was an arbitrary order for assessing that sum for the purpose of raising money to pay one John McBean for paving said street, under private contract with some of the property holders on said street, and this warrant is being now prosecuted for that purpose.

That a large part of the said work was done by said McBean, under said private agreement with said property holders, before said order was made.

SCATES, MCALLISTER & JEWETT, for Appellants and Plaintiff in Error.

T. HOYNE, for P. F. W. Peck.

E. ANTHONY, for the City of Chicago.

CATON, C. J. The assessments in these cases, were in part for improvements already executed by parties other than the city, and without any liability on the part of the city. The assessments were therefore illegal, and it was the duty of the court to refuse to render judgments for them. Pease v. City of Chicago, 21 Ill. R. 500.

The judgments in the two first cases are reversed, and in the last the judgment is affirmed.

Hamilton et al. v. City of Chicago.

RICHARD J. HAMILTON, ESTHER EWING, GEORGE W. EWING, MURRAY F. TULEY, B. F. BLACKBURN, GEORGE W. TURNER, THOMAS J. BYRD and JANE F. BYRD, Appellants, v. THE CITY OF CHICAGO, Appellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

Proceedings under special assessment for the city of Chicago, prior to the passage of the law of 1857, were limited in time, both as to the order of sale and the sale of property, and the sale was required to be within two years from the date of the order confirming the assessment; unless it was delayed by legal proceedings.

THIS was a proceeding to levy a special assessment in the city of Chicago.

The collector reported to a special term of the Common Pleas, that the warrants for the collection of these assessments were issued, as required by law, and were delivered to him on or before the second Tuesday of October, 1858.

That he forthwith published a notice in the corporation newspaper, that such warrants were in his hands for collection, describing the nature of the warrants and requesting all persons forthwith to make payment, and that, in default, the assessment would be collected at the cost and expense of plaintiffs in error.

That he had given ten days' notice of his intended application to the court, for a judgment against said lots, for the amount, interest and costs due; in which he himself set forth the nature of said warrants, and in which he requested all persons interested therein to attend at said term.

The warrant contains the assessment roll, as follows:

66 ASSESSMENT ROLL.

"Description of a portion of the real estate, deemed benefited by filling up and planking North Clark street from the river to Ontario street, with valuation thereof, and the sums of money, severally assessed thereon for benefits, by the commissioners, to wit:

"The collector is commanded to levy, make and collect of the owners of the real estate, described in the warrant, the