The daily Cairo bulletin. (Cairo, Ill.) 1878-1???, 1882-08-04

avenues, sidewalks, whlrves, parks and
public grounds; and for these purposes the
CITY. under its charter and eminent domain
law might take by condemnation such
private property as is required for such
purposes, but it could only do so in the
mode pointed out in the charter, viz by
the passage of an ordinance providing for
and specifying the particular improvement
to be made.
Article * of the City Charter is very
explicit on this point; and it is therein
provided;
"SEc. 2. When any such city or village
shall by ordinance provide for the making
of any local improvement, it shall, by the
same ordinance prescribe whether the
same shall be made by special assessment
or by special taxation of contiguous prop
erty or general taxation, or both"
@SEc. 3. Should said ordinance provide
REINFORCEMENT which require the taking
or damaging of property, the proceedings
for making just compensation therefor
shall be as follows;
"SEc. L. Whenever any such ordinance
shall be passed by the legislative authority
of any such city or village, for the making
of any improvement such city
or village is authorized to make, the
making OF which will require that private
property be taken or damaged Tor public
use, such city or village shall file petit
ton in some court of record" &c.
1t is clear from the charter that the pas
sage of resolution to condemn private
property for ''public use' is wholly made
Quate as basis upon which to commence,
proceedings of condemnation.
The passage Of an ordinance providing
for some public improvement authorized
by the charter, viz: The laying out, es-
tablishing opening, alternating, widening
extending, paving, or otherwise improving
streets avenues, sidewalks, wharves, parks
alleys and public grounds"
If the particular improvement provided
for in the ordinance requires the taking OF
private property, and the compensation
cannot be agreed upon by the parties in
interest, then legal steps may be taken
to condemn the private property so re
CURED TO make such Improvement
But it is universally true, as a well set
tied proposition of law that only such pri-
vate property, and so much thereof, as is
required for the special purpose or improve
ment ordered, can be condemned.
If the taking of land itself is required
as in the case of laying out, extending, &C.
of streets, &C., then the legal title thereto
may be acquired by the city by condem-
nation.
But if the improvement ordered was the
mere filling Of certain streets with earth to
be taken from the private land Of others,
it is very clear that only SO much earth
could be condemned as was required to do
the particular filling ordered. 1t would
not present case of the taking or condem-
nation of the land itself, the complete title
aud ownerihip of which, in theory of law,
extends to the earth's center, but would
simply be a case of damage to the land
not taken, by removing therefrom so much
earth as is required for doing the filling
specified in the ordinance.
! uupreRume therefore the resolutions IN n
body without due reflection or consdera-
| ton of the city charter and law of eminent
domain applicable to such cases, and it will
| now be APPARENT to you that the corpora
| ton counsel is powerlesS under the law to
comply with the instruction therein given
him.
Respectfully your,
WM. B. GILBERT, Corporation Counsel.
Alderman Pater moved to refer to city
atinrnot, and co,,n, ;ttoo On otroo+s ;n,rtl,.
and that it be printed with the proceedings.
Motion carried.
VIM. B. Gilbert, corporation counsel,
submitted the following report of Nelson
Rix and others, which was on motion of
Alderman Wood, received and ordered
printed with the proceedings:
CAIRO, H., July 31st, 1882
To the Hon. City Council of the City OF Cairo.
GENTLEMEN-In matter of petition of
Nelson Rix and Others for abatement of
sidewalk assessment upon lots and s,
blk 70, city, on the ground that the same
are church property and exempt from taxa
ton, referred to corporation counsel July
~pi 1909, anu DereWlIu returned, respect
fully report that although the general rev.
enue laws Of the state exempt church
from payment of taxes; yet the
supreme court Of the state has in several
reported cases decided that an assessment
for public improvement, such as construc-
ton of sidewalks, &c, is not "a tax; and
it is expressly held by the court in case of
City of Ottawa vs, Trustees of the Free
Church, 90 ILL.,, Reports p 423, that "church
property is liable for special assessments"
Respectfully yours,
VIM B, GILBERT,
Corporation Counsel.
REPORTS OF COMMITTEES.
Committee on streets reported |
having examined sidewalks on corner
If Ohio levee and 9Th street
md recommended in lieu OF temporary
a good plank walk to be built as
'oon as practicable by special assessment.
Alderman Blake moved to receive report,
md that the ordinance committee report
1