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City of Waukegan v. Drobnick

JULY 9, 1965.

CITY OF WAUKEGAN, ILLINOIS, PETITION TO LEVY A SPECIAL ASSESSMENT, ETC., PETITIONER-APPELLEE,

v.

JOSEPH J. DROBNICK, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Lake County, formerly County Court; the Hon. MINARD HULSE, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 31, 1965.

The City of Waukegan filed a petition to levy a special assessment for the construction of a street system, water supply line, sanitary sewer stubs, and storm sewer system along a certain area within the city. This is an appeal by certain objecting property owners from an order of the former county court of Lake County affirming a report and assessment roll filed by the City of Waukegan. The appeal was taken to the Supreme Court, and upon re-examination of the nature of the relationship between special assessment proceedings and the revenue, that court concluded that the relationship was too remote to warrant direct appeal. The cause was therefore transferred to this court. (31 Ill.2d 580.)

The objectors urge four basic grounds for reversal:

(1) that the trial court did not have authority to modify the assessment roll by changing the amount of the respective installments to be paid under the special assessment;

(2) that certain of the preliminary procedural steps necessary for the validity of the ordinance for the improvements were not complied with;

(3) that certain property specially benefited was not assessed; and

(4) that the proposed improvements were totally unnecessary and oppressive.

As to the first point, the ordinance provided that the special assessments should be divided into ten installments with the first being at least 30 percent of the total. This was contrary to the provisions of sec 9-2-48 of the Illinois Municipal Code of 1961 (Ill Rev Stats 1963, c 24, par 9-2-48), which prescribes that the division into installments "shall be made so that all installments shall be equal in amount, except that all fractional amounts shall be added to the first installment, so as to leave the remaining installments of the aggregate equal in amount and each a multiple of $100."

The trial court ordered the assessment modified so that all installments would be equal in amount, except that all fractional amounts should be added to the first installment. The order set forth the specific amount of each installment and directed the Superintendent of Special Assessments to modify the assessment roll on its face to conform to the order. The order did not alter either the total assessment or any individual assessment. When the assessment roll was so modified, it was then confirmed by the court.

While the appellants suggest that the court had no authority to modify the assessment roll and the ordinance was thus void, no authority is cited in support of this proposition. The action of the trial court was clearly warranted under the provisions of section 9-2-61 of the Illinois Municipal Code (Ill Rev Stats 1963, c 24, par 9-2-61), which states in part:

"The court before which any such proceeding may be pending may modify, alter, change, annul, or confirm any assessment returned as specified, in addition to the authority already conferred upon it, and may take all such proceedings, and make all such orders, as may be necessary to the improvement, according to the principles of this article, . . . ."

Similar powers are conferred upon the court in section 9-2-56 of the Code. (Ill Rev Stats 1961, c 24, par 9-2-56.) Were the appellant's contention valid, we cannot visualize a case where the court could do more than declare an assessment either valid or void, even though the required modification or correction sought to be made by the court is of no consequence insofar as the improvement or assessment is concerned.

The failure of the ordinance to divide the assessment into installments in the exact manner prescribed by the statute did not render the assessment void. The People v. Markley, 166 Ill. 48, 53, 54, 46 N.E. 742 (1897). After the roll has been returned to the court, power over the assessment is then vested in the court and it may alter, modify or change the assessment in such manner as, in its judicial discretion, it deems proper. Chicago & W.I.R. Co. v. City of Chicago, 230 Ill. 9, 13, 82 N.E. 399 (1907). This power includes the power to change the amount of the installments so that the assessment might conform to the technical ...


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