The Cairo daily bulletin. (Cairo, Ill.) 1870-1872, 1871-06-17
THE STREET FILLING.
THE DECISION OF THE SUPREME
COURT IN THE CASE OF
III al FALLS V.THECITY.
rIr CASE DECIDED IN FAVOR OF THE cry

1 Walter Falls v. City of Cairo. Appea
' from Alexander.
z Opinion Of the Court by Mr.. Justice Sheldon.
! This was an action of assumpsit TO
, money had and received, brought to tn
April term A. d. 1870, of the Alexande
Circuit Court by appellant against appel
Ice, to recover back certain monies pait
In 1869 ms special assessments upon ND.
pellants lots in the said city of Cairo.
In the year of 1868 the city of Cairo
through the City Council, ordered Wash.
ington avenue and Poplar street, two
streets of the city, to DO graded and filled
To defray the expenses Of these improve
ments a special assessment was laid upon
the lots fronting, bounding or abutting on
said streets. The appellant owned two lots
assessed in his name which run through
from Poplar street TO Washington avenue
and were assessed for the filing Of both
streets, and four other lots fronting on
| Washington avenue, and assessed for the
| filling of said avenue. The assessments
were made by the Board of Public Works,
confirmed by the City Council, and war
rants issued to the collector of city taxes
directing the collection thereof. The
amounts assessed upon appellants lots
wore not paid within the time fixed by the
City Council, and after publishing his lots
as delinquent judgment against each of
them was rendered in the County Court
of Alexander county. After the rendition
OF these judgments and the issuing of pre-
cepts 70 sell said lots, the appellant paid
the amount assessed upon his six lots,
amounting in the aggregate TO 81, Go2. 81
The city then abandoned the collection of
assessments In which were included an.
pellants lots, and for the filling of Poplar
street and Washington avenue, and after
applying the amounts collected by virtue
OF the special assessments, TO the payment
for tho Rliing ard grading of said streets,
Issued the bonds OF The city ia payment
for the balance, and all property, real and
personal, in the city, is taxed TO pay the
interest on these bonds, as we'll as the lots
OF appellant, upon which he has paid his
assessment, ~ other property To recover
back this amount with interest from date
Of payment, the appellant brought this
suit, land he insists upon the following
points, upon which he basis his right 10
recover:
= LIST. The assessments were illegal, un-
constitutional and void.
I'd. The payment of the assessments by
appellant was compulsory.
Sd. To retain the money paid after an
VI tnc usscssI1cutS WOQlu
in violation of the constitution, and con-
trary to equity and good conscience.
4th. The consideration for which the
money was paid has wholly failed.
By. reference to section s, article 6, of
the Charter Of Cairo, private laws 1867.
vol. l, page 3s2, We find tho City Council
is empowered TO cause any street TO be 4
filled and graded, sand to assess and coll
lect the expense and cost of the same,
together with the expense Of collection,
from the real property benefited thereby, to
the extent of the benefit SO conferred by
such improvement, the balance of the
cost Of such improvement to be paid out
OF the Improvement fund, said assessment
and collection to lie made, as the CITY
Council may by ordinance direct"
To carry into effect this provision of the
charter, an ordinance was passed by
the City Council Section of this ordi-
nance provides" After said contract has
boon awarded or said material furnished
and work performed by tho city, tho Board
Of Public Works shall immediately pro-
coed to make an assessment If the proper
of the expense and cost of such
Improvement upon each lot or part of lot
fronting. bounding or abutting upon the
street, avenue or highway or portion
Of street, avenue or highway filed
assessing TO each lot or portion of lot the |
special bereft conferred by such improve
ment upon such lot or portion of lot; the
ever, not to exceed the total cost OF such
or proposed improvement
Thesa section imposes upon tho Board
IF Public Works the duty of examining
The locality where the proposed improve
mcnt is 10 be made, as well as all the lots
Or parts Of lots that will be specially bene-
fitted thereby,
Admitting these assessments to have
been illegal, runcons titutionnl and void, |
because, the making of the assessments |
was confined to the particular property !
upon the street which might be |
specially benefited, It was not extended TO |
all the property which might be go bene-
fitted. After having paid them, under the |
circumstances in this case, is the appeal |
liant entitled TO recover the moLey back on |
the ground OF tho payment having been IL
compulsory and nota yolutary ones The
preccpt which was in the hands of the Of
lcer at the time these assessments were
paid, did not authorize him TO levy upon
the goods and chattles Of the appellant,
but directed him merely to make sale of
the lots to satisfy the assessments. In
D'"Nioiu v. tHc Sik1 VI AuICuSO, ~ llI.3Ii, |
1t was held that the payment Of an assess
Inent made to collector Of taxes, whilst
having III his hands warrant TO levy and
collect the amount of the assessment Of
goods and chattles Of the owner might be
considered compulsory, and mude under
such circumstances ms would authorize the
party paying the money to recover back
The same, If the assessment was illegally
made.
But il was decided in Stovcr
v. Mitchell, 40 ILL.,, 2l3, that levy of an
execution upon ones land did not make n
case OF such duress or compulsion that
payment made to prevent the sale of the
land under the execution could be recov-
,rcd-baek us a compulsory payment II
WAS held to be Il voluntary payment and
not one made under duress, and it Is there
said, A" 1t is insisted that the levy Of the
execution on Stover's land was the exer-
else of such compulsion AS to interfere
with Stovcr's freedom of action. No case
is cited giving to this extent, and we ven.
ture TO say none can be found. In order
to render such payment compulsory, such
a pressure must be brought to bear upou
tho person paying AS to interfere in some
way with the free enjoyment of his right,
Of person or property" citing Bradford v.
The City OF Chicago. supra. and E'ston v.
City of Chicago 40 ILL.,, Ola. 10y
There was here no nterferanca with H.