The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1866-11-17

IHE CITY OF OF orTAwA' Error to La .Salk
County Court.

|
Chief Justice Walker delivered the opin'
ION of the court:
This was AN application for judgmen,
against certain city lots, for the amount o
expenses incurred in constructing sidewalks
in front thereof and assessed thereon, under
the charter of the city.
Th. proceeding was under the tenth sec.
ton of article eigh: of city charter. 1t de-
clares that "All owners or occupants in front
or upon whose premises the city council shall
order and direct the sidewalks, or private
drains, communicating with any main drains
to be constrnc;e1, repaired, relaid or cleansedj
shall make, repair, relay or cleanse such
sidewalks or private drains at their own cost
and charge in the manner and within the
time prescribed by ordinance lor otherwsej
| and if not done in the r.anner and within
| the time prescribed; the council may cause
the same to be constructed, repaired, relaid
-or cleansed, and assess the expenses thereof
and by an order to be entered in their pro-
cecdings upcr such lot. respectively, and
collect the same By warrant and sale of the
premises as provided il article nine OF this
| charter, as near as may be. A suit may be
also maintained against the owner or occu.
pants cf said premises for recovery of such
expenses, as for money paid and laid out to
! his use at his request
| The fifth section of Chapter three of the
| city oriinaces declares that when deemed
expedient to grade, plank, pave. or flag any
| sidewalk withiI this city, the owners of
property On said line Of sidewalk or their
legal representatives may petition the city
council for that purpose.
| The sixth section declares that when
a petition shall be presented to the city
H. 10, IL
chargeable upon the property of any person
that notice OF the application shall be given
of the time of presenting the same, 10 all
persons who may become chargeable.
The eighth section declares that when the
city council shall order any sidewalk part
of sidewalk to be graded, planked, paved or
tagged. the city surveyor shall establish
the grade thereof within ten days thereafter,
unless previously established.
The niH;h section declares that if any
owner of lot shall fail or refuse to construct
the sidewalk so ordered, within The time
limited, after the time has expired, 1t is made
the duty Of the street and alley committee 10
proceed Immediately t, let the construction
thereof to the lowest responsible contractor,
to be completed within thirty days.
The tenth section requires the committee,
as soon a. the work is completed, to report
the same to the city council with the amount
charseable to each block, lot or part o, lot
respectively. as their proportion OF the ex-
pense Of constructing such sidewalk, in front
ef such block, lot or part of lot; and the
common council is required TO assess the
amount 50 reported together with all costs
that may accrue thereon. on the block, 10; or
paTt of lot. in front of which the sidewalk
was constructed, and the mayor Is required
to i-sue bis warrant countersi med by the
city clerk under the seal Of the city. for the
collection OF sach assessment, rcturlablc
within thirty days thereafter.
Section eleven provides for the mode Of
proceeding against any Delinquent lot or
block
An order for the construction of the side
walk WAS made, hut the owners or occupants
of the lot, In front of which 1t WAS required,
failed within time limited 10 make the walk.
Ii was then constructed by the city. and the
expense reported II the com nsn csuncIi, by
whom it issued against tn: respective
lots in front OF which the walk was built a
warrant for its collection wa, issued aud
placed in the ha is OF the city collector. who
re;urI.cd it no property found ou: OF which -
make the assessment. Notice WAS published
by the collector tha, he would apply to the
COUNTY Court Uf Ia Sale county at the
March term 1866 fo- Judgment asaius, the
lots for the amount assessed against them.
At the return term OF the court, defendants
appeared, filed exceptions to It's proceedings,
aud resisted the rendition OF a judgment and
order of sale of the lots for the amount of the
assessments. On hearing, the court al
lowed the objections, ard refused TO render a
Judgment AMI order OF sale of the lots. TO
reverse this judgment the city prYscecutes
this writ of error.
Objections are urged against the proceed
ings for want of sufficient notices, and for
other irregularities IN the proceedings. but
in the view We take Of the case We deem it
unnecessary to consider these objections.
We shall only consider the question,
whether the assessment as made nder the
city charter and the ordinances are warran.
ted by our constitution.
In the case of Larncd rs. The City ofI
Chicago, 81 H., 2O3, it was held that the
expense Of grading and paving a street in
front Of lot could not be assessed ON the
property in proportion to the frontage. but
being public Improvement, It should be
assessed upon all Of the property benefited
by the i'm provement, and in proportion to The
benefits thus received, - the constitution re-
auires such bufthens to be ratnbly borne
That rs assessment in proportion TO the
nature of tax in violation of the requires
ment that taxation should be based on vslua.
ton, and If il Was an attempted exercise of
the right of eminent domain, it failed to
make compensation for the property appro>
priaieC to public use.
In thi. case, however, 1t is in,Isted, that
distinction exists between the cases. That
in the case of Larmed r,. The CITY Of CHI
cayo, it was for paving tine street with what
is known as " Nicholson pavement which
is highly expensive, whilst this case it is
simply board sidewalk, which is not expen-
sive. That this Improvement IS directly
beneficial to the owner, and incidentally so
to the other inhabitants of the city. whilst
the grading and paving the street itself is of
public benefit incidentally behrftIng the
owner whose property fronts upoh the I'M
provement.
There is undoubtedly distinction in the
facts of the two cases, but we can see no
difference in the principle governing them
both. In either case the owner of the pro>
perty fronting on the improvement, may uso
and enjoy the benefits of the improvements
in common with all other persons. In the
one case az IN the other the Improvement is
made for the benefit of the public. All may
use and enjoy them alike. In neither case
has the owner Of the property fronting on the
improvement any exclusive or greater right
in tine improvement. than has any other in-
dividual in ;he community.
Nor do we see that the question of ex-
pense can make any difference in princ;-
Pile. In this case it may lie of much less
expense to lay the walk than to pave the
street; but cases might occur when the
grading or erection of sidewalk would be
more expensive than paving tl,e same length
of the street at some other point it nigh: re-
quire an expansive filling with supporting
walls, or an expensive bridge to bring it to