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In Re Village of South Jacksonville

OCTOBER 8, 1964.

IN THE MATTER OF VILLAGE OF SOUTH JACKSONVILLE, SPECIAL ASSESSMENT FOR IMPROVEMENT OF EAST GREENWOOD AVENUE BETWEEN SOUTH MAIN STREET AND HARDIN AVENUE AND THE IMPROVEMENT OF SOUTH CLAY AVENUE BETWEEN GREENWOOD AVENUE AND EAST MICHIGAN AVENUE. VILLAGE OF SOUTH JACKSONVILLE, PETITIONER-APPELLANT,

v.

MARGARET F. EMBERTON, ET AL., OBJECTORS-APPELLEES.



Appeal from the Circuit Court of Morgan County; the Hon. JOHN B. WRIGHT, Judge, presiding. Reversed and remanded.

SMITH, J.

The Village of South Jacksonville initiated this proceedings to spread an assessment to cover a portion of the cost of constructing concrete pavement, curb and gutter, and a storm sewer on a portion of two village streets. Appellee property owners filed a number of objections. Certain objections were sustained by the trial court and the petition of the Village was dismissed. This appeal followed.

The objections which were sustained by the trial court and upon which its judgment of dismissal was based presents these points: (1) that the district to be benefited by the proposed sewer improvement was not defined or its boundaries fixed as the statute requires, (2) that the proposed assessment was for two separate improvements, and (3) that a street pavement, curb, gutter, and storm sewer improvement cannot be assessed in one proceeding.

This controversy was bred in that section of the Municipal Code providing for the equitable apportionment of cost between the public and private property to be benefited by the improvement. Ill Rev Stats (1963), c 24, § 9-2-45. The sentence to which the finger is pointed reads as follows:

"When the proposed improvement is for the construction of a sewer, it is the duty of such officer to investigate and report the district which will be benefited by the proposed sewer, describing the district by boundaries."

It is clear that there was no attempt to do this.

It is the position of the objectors that statutory compliance is mandatory whether it is a sole sewer improvement project or a sewer project which is an adjunct of another improvement. They apparently draw no distinction between a storm and sanitary sewer but here insist, as they did in the trial court, that we have a street paving improvement and a storm sewer improvement — thus two different projects. The Village takes the position that this is a street paving improvement with a storm sewer as a more or less necessary incidental part and thus the statute does not apply.

The engineer who prepared the street paving plans and specifications testified:

"I made plans and specifications on this project that also included a storm sewer. I did not make any investigation prior to drafting the plans and specifications as to the district that would be benefited by the proposed storm sewer describing the district by boundaries. I do not know the area at this time that will be benefited by the proposed storm sewer."

He further testified:

"Whether or not what we have designed, so far as this storm sewer is concerned, drains an area which far exceeds that which is covered by the actual assessment for the storm sewer for these individuals depend on the meaning of drains . . . there is water from an area outside the area of the storm sewer and street improvement which flows overland and is intercepted or picked up by our proposed storm sewers on these two street improvements. It does flow into the project eventually. There is water being collected within the improvement that is from outside the improvement, from property that is not included in the property owners in this assessment and from streets that are not within this assessment."

On rebuttal he said:

"This storm sewer does not in any way increase, decrease, facilitate or hinder the drainage of water from areas not adjacent to the street . . . such as area of Pennsylvania Avenue. The existing drains on the streets at this time, as far as I know, is all open ditches."

This testimony suggests that the proposed project comes squarely within the case of City of Carbondale v. Walker, 240 Ill. 18, ...


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