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In Re Petition For Special Assessment





APPEAL from the Circuit Court of Tazewell County; the Hon. IVAN L. YONTZ, Judge, presiding.


The Board of Trustees of Community College District No. 514 (objector) appeals from an order confirming an assessment against it for a new water tower and necessary appurtenances. Objector argues there is a contract between it and the city which precludes any assessment for water improvements, asserts the commissioners did not comply with the statutory requirement that they report proportionate benefits for each property affected and contends its property will not be benefited to the amount assessed against it.

On September 18, 1979, the city of East Peoria filed a petition to begin steps to levy a special assessment for local improvements. Attached as exhibit A was ordinance No. 1455, which provided for a local water improvement project. Attached as exhibit B was an assessment role which listed the individual assessment against each property affected, including objector's campus.

An objection was filed by the college board of trustees alleging that a prior ordinance and "agreement" between the college and city provided that the city would supply water services to the college in perpetuity; the "agreement" constitutes a complete bar to the authority of the city to assess the college district; and objecting to the entry of any order of confirmation of said assessment role. Attached to the objection was a copy of a resolution passed by the city council of East Peoria, Illinois, on March 4, 1969, authorizing an agreement between the city and the college district providing for water service. Also attached was a copy of the "agreement" itself.

Following an amended petition revising figures in the assessment role, and other revisions in the assessment role, hearings were held on the objection by the college. On October 24, 1980, a judgment order of confirmation as to assessments levied against the college was filed stating that none of the objections filed by the objector have merit and, therefore, denying the objections. Subsequently, further revisions in the assessment role were made, none affecting the interest of the college district. The final relevant figures in the confirmed assessment role are as follows:

Assessment for Junior College District 514 $62,550.00 Assessment for public benefit $328,800.03 Assessment against all property owners $369,232.97 Total Assessment against public benefit and all property owners $698,033.00

This appeal followed.

The initial question addressed by the parties is whether the "agreement" provides for perpetual water service so as to preclude the city from assessing the college for present improvements, and if so, whether such a perpetual contract is void thus allowing the city to make the challenged assessment. An examination of the "agreement" discloses that the "in perpetuity" claim of objector could be deemed self-limited to the proposed construction then contemplated by reason of its several references to the construction of the water system and tanks "as proposed by City"; construction to be as "set forth on the plat hereto attached and made a part hereof"; to maintain "Said water mains, water lines, * * * and elevated water tanks," and to liability for costs of "said facilities." Whatever the meaning of the words "in perpetuity" as used in the "agreement," it appears that the "agreement" was limited to work defined in the specifications attached to the "agreement." However, it does not appear that the instrument was argued in the trial court upon such language.

A city had no power to enter into a contract concerning the subject matter for a period longer than one year. Section 8-1-7 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 8-1-7) provides:

"No contract shall be made by the corporate authorities * * * and no expense shall be incurred * * * unless an appropriation has been previously made concerning that contract or expense."

Section 8-2-9 requires municipalities with less than 500,000 inhabitants to pass an annual appropriation ordinance in which all purposes and objects shall be specified for each amount appropriated.

• 1 In Avery v. City of Chicago (1931), 345 Ill. 640, 178 N.E. 351, our supreme court construed the statutory predecessors to these sections and held that "in the absence of an enabling statute authorizing a contract concerning the subject matter for a period longer than one year, the city of Chicago had no power to enter into such a contract imposing an obligation for five years." 345 Ill. 640, 648, 178 N.E. 351, 354.) A party contracting with a city is presumed to know whether the city is prohibited from making a contract, and a contract in violation of a statute is void and cannot be ratified. DeKam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550.

• 2 Objector asserts this argument was not made at the trial court and cannot now be raised for the first time. However, the city's trial memorandum in opposition to the objection contains precisely the same argument. While there is no indication the argument was made orally, the memorandum filed with the circuit court suffices to preserve the issue. We conclude the contract provides for water service to the college at regular gallonage rates in perpetuity and that such contract is void and could not be ratified.

• 3 Nonetheless, non-home-rule units of local government have only the powers granted to them by law and certain other specific powers not at issue here. (Queenwood East Sheltered Care Home, Ltd. v. Village of Morton (1981), 94 Ill. App.3d 51, 418 N.E.2d 472; Ill. Const. 1970, art. VII, § 7.) The only implied powers which a municipal corporation can possess and exercise are those which are necessarily incident to powers expressly granted. We have not been cited to, nor are we ...

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