Shurtleff v. City of Chicago eral system of streets in the city without opening the proposed avenue. The plan to lay out and open Oakdale avenue from Burling street to North Clark street by this proceeding was originated in 1899, and appellant proved on the hearing before the court that in 1891 he dedicated a strip of land between Sheffield avenue and Mildred avenue for an extension of Oakdale avenue between said streets, that the value of the land dedicated was from $5,000 to $8,000, and that the land so dedicated was accepted by the city, and forms that portion of Oakdale avenue between said Sheffield avenue and Mildred avenue. The land so dedicated was several blocks west of the place where it was proposed to open the avenue, and constituted another part of such avenue. On the trial before the jury the same fact of the previous dedication for a part of the avenue in another place was proved, and appellant asked the court to instruct the jury that, in making up their verdict, they should ascertain what land had been so donated by appellant for the street, and appraise the value thereof, and apply it as a set-off against the benefits assessed against his property. The court refused to so instruct. Appellant claims a right to a credit for the value of the property donated by him eight years before, against the amount of his assessment, under section 17 of the act of 1897 concerning local improvements, which governs the proceeding. That section provides that, where part of the land to be laid out into the street has been donated by any person, it shall be lawful for the commissioners, in making the assessment, to appraise the value of the land so donated, and apply such value as a set-off to the benefits assessed against the person making the donation. The facts do not bring appellant's claim within the terms of the statute, which is intended to allow what a party gives towards a contemplated improvement in the way of land to be taken and used in opening a street, as against benefits to his remaining property. The statute only embraces land to be laid out into the street for the opening of which benefits are assessed, and it is not contended that any part of appellant's property was to be laid out into the proposed street. His dedication was made in 1891, for reasons or upon considerations which were satisfactory to him at the time, and for another part of the street, several blocks away, and such dedication of property lying elsewhere is not covered by the statute. Appellant's property does not abut upon the proposed street, and the ingress and egress to and from the property will not be affected by opening it; and the next proposition argued is that, under such circumstances, benefits cannot be assessed. Appellant's counsel say that if Oakdale avenue were open at the place in question, and should be closed by the city, appellant could recover no damages for the injury to his property, because the damage would be general, and not special, differing in degree, but not in kind, from the damage to the gen Shurtleff v. City of Chicago eral public, and that special benefits must be determined upon the same basis. They insist that, if appellant could not recover damages for vacating the street after it shall be opened, his property cannot be chargeable with benefits resulting from such opening. The argument ignores the essential distinction between the taking of private property for public use and the imposition of a burden under the power of taxation. It is true that the owner of property cannot recover damages for the vacation of a public street not adjoining or contiguous to such property, and where the vacation does not deprive the owner of access to or egress from the property, because such vacation is not a taking or damaging of his private property for the public use. The power of taxation is a power to enforce contribution from persons and property for the maintenance of the government. General taxes are levied on the ground of general public benefits, while special assessment is a peculiar species of taxation to pay for local improvements, which recognizes the general public interest and benefit, but rests upon the supposition that a portion of such public are specially benefited in the increase of value to their property. The principle upon which special assessments rest is that, while the benefit does not differ in kind from the benefit to the rest of the community, it differs in the fact that the particular property assessed is enhanced in value by the improvement to the amount of the assessment. A local improvement may specially benefit a portion of the community so as to justify an assessment equal to such increase in value. The act of 1897 contemplates that an improvement may be a general and public benefit, as well as a special benefit to particular property; and by section 15 the commissioners are required to estimate and report what proportion of the improvement will be a benefit to the public, and to apportion the benefits between the municipality and the property assessed. The commissioners and the jury found that appellant's property was benefited to the amount of the assessment, and such an assessment is not unlawful. Lastly, it is objected that the court ought not to have proceeded to final judgment between appellant and the city before the objections filed by other persons were disposed of. Appellant could not appeal from the verdict of the jury, and the statute provides for the judgment from which he could appeal, so that the validity of the assessment can be finally determined. The city is allowed 60 days after the appeal is disposed of to enter final judgment or abandon the proceeding. The provision of section 26 that no final judgment shall be entered until all the issues in the case have been disposed of relates to the final determination of the condemnation and assessment, after all the issues between the different parties shall be settled under the other provisions of the act. The judgment is affirmed. Judgment affirmed. Fischback v. People ex rel. Tetherington FISCHBACK V. PEOPLE ex rel. TETHERINGTON, County (Supreme Court of Illinois, June 19, 1901.) [60 N. E. Rep. 887.] Objections-Waiver.-Objections not mentioned or argued by counsel in their brief will be regarded as waived. Street Improvements-Assessment of Benefits-Objections.—Local Improvement Act 1897, § 66, provides that, on application for judgment of sale of property for assessments for local improvements, "no defense or objection shall be made or heard which might have been interposed in the proceeding for the making of such assessment or the application for the confirmation thereof." Held, on application of the county collector for a judgment of sale of plaintiff's lot for an assessment for paving a street, that he could not object thereto on the ground that the paving was not done in accordance with the ordinance, and that as done it deprived him of a sidewalk in front of his premises, since these objections should have been made in the proceedings to confirm the assessment. Appeal from county court, Madison county; William P. Earlv, Judge. Application of the people, on relation of Tetherington, county collector of Madison county, for a judgment of sale against Benedict Fischback. From a judgment in favor of the relator, defendant appeals. Affirmed. Dunnegan & Leverett, for appellant. CARTER, J. On the application of the county collector of Madison county for a judgment of sale of appellant's lot in the city of Alton for the first installment of a special assessment levied to pay his proportion of the cost of paving Washington street, extending along the front of such property, the appellant appeared and filed objections to judgment, in substance-First, that there was no sufficient description of the property in the published notice of the application; second, that the improvement for which the assessment was levied was not made in accordance with the ordinance; and, third, that the improvement as made deprives objector of a sidewalk in front of his property. As to the first objection, we find no substantial defect in the description, and, as counsel for appellant make no mention of this objection in their brief or argument, it must be regarded as waived. Inasmuch as we are of the opinion that the other two objections were properly overruled for other reasons, we need not consider the question raised by appellee that the ordinances given in evidence by appellant and set out in the record were not sufficiently proved, and were improperly admitted in evidence. It appears that in September. 1899, the city council passed an ordinance providing for the paving of Washington street with brick for the width of 42 Fischback v. People ex rel. Tetherington feet, and for the paying of the cost of the work by special assessment levied upon property specially benefited. The assessment was made on such property, including appellant's lot, and was duly confirmed by the county court after notice to the property owners, including appellant. It does not appear that appellant appeared or filed any objections to the confirmation, and his counsel say in their brief that he does not object to the improvement of the street, but only to its being done in such a manner as to deprive him of a sidewalk in front of his property. After the judgment of confirmation, and in 1890, while the work was in progress, appellant objected to it, because, as he claimed, there would be no room left for a sidewalk in front of his lot. It further appears that afterwards the city council passed an ordinance which defined the lines and width of the space for a sidewalk on that side of the street, and which reduced the width of such space from the uniform width of 12 feet, as theretofore by ordinance provided, to a width from the curb line of the street as paved and improved, which varied from 12 feet to 4 2-10, according to the lot lines fronting on said street. There was some evidence that the city had theretofore constructed the sidewalk and placed it over the line on appellant's lot instead of in front of it, and that appellant had recovered damages for the trespass (City of Alton v. Fishback, 181 Ill. 396, 55 N. E. 150); and appellant testified that the curb of the improved street touched at some points on his property, but there was no evidence adduced showing where the true line was. It appears, however, from the evidence, that the improvement was made in strict conformity with the ordinance authorizing it, and the maps, plans, and detail drawings prepared by the city engineer, referred to in the ordinance, and which were on file in his office, and no sufficient reason appears why appellant could not have made and filed his objections in the county court on the application for confirmation. Section 66 of the local improvement act of 1897 provides that, on application for judgment of sale, "no defense or objection shall be made or heard which might have been interposed in the proceeding for the making of such assessment or the application for the confirmation thereof." It may be that the actual construction of the improvement brought more directly and forcibly to his attention the fact, if it be a fact, that his property would not be benefited, or benefited to the extent it was assessed, by the improvement, than was done by the ordinance and its accompanying maps and plans. Still, that would not give him the right to appear and make the same objections on the application for sale that he should have made on the application for confirmation. It was not shown that the location of the improvement had been changed or was different from the one provided for in the ordinance, but only that a subsequent ordinance was passed changing the width of the sidewalk. The sidewalk ordinance did not change or purport to change the Martin v. Wills ordinance under which the improvement was made, or to affect the improvement in any way. Counsel cite and rely on Carter v. City of Chicago, 57 Ill. 283, to support the proposition that the city council had no power to appropriate so much of the street for roadway purposes, whereby abutting property owners would be deprived of a sidewalk in front of their premises. We do not understand counsel to insist that the ordinance for the improvement was and is void for lack of power of the city council to pass it, but if such were their contention, and the equitable doctrine announced in Carter v. City of Chicago, supra, were applicable here, we could not find, from the meager evidence in this record, that appellant is deprived of a sidewalk in front of his property. The judgment must judgment must be affirmed. Judgment affirmed. MARTIN et al. v. WILLS et al. (Supreme Court of Indiana, June 21, 1901.) [60 N. E. Rep. 1021.] Street Improvements-Local Assessments-Collection.-Where assessments have been levied on abutting property for expense of street improvements, under the act of 1889, known as the "Barrett Law," the assessments may be collected by a foreclosure of the lien and sale of the property, as provided in Burns' Rev. St. 1894, § 4294 (Horner's Rev. St. 1897, § 6777), as well as by precept issued by order of the city council, as provided in Burns' Rev. St. 1894, § 4298 (Horner's Rev. St. 1897, § 6780). Same-Same-Constitutionality.*-The act of 1889 known as the "Barrett Law" provides that expenses of street improvements may be assessed on property benefited thereby, in proportion to the benefit received, and without regard to the value of the property. Held, that the law is not repugnant to Const. art. 1, § 21, 23, providing that no man's property shall be taken without just compensation. Same Same-Same.-The Barrett law is not in violation of Const. art. 1, § 26, providing that the general assembly shall not grant to any citizen privileges or immunities which on the same terms shall not equally belong to all citizens. Same Same-Same.-The act of 1889 known as the "Barrett Law" provides that expenses of street improvements may be assessed on property benefited thereby. Held, that such act does not provide for such assessment without a hearing as to such benefits, and even if it did it would not conflict with Const. U. S. Amend. 14 providing that no person shall be deprived of his property without due process of law. Appeal from circuit court, Boone county; James V. Kent, Special Judge. Action by Charles G. Wills and others against Thomas H. Martin and others. From a judgment for plaintiffs, defendants appeal. Affirmed. T. J. Terhune and C. M. Zion, for appellants. P. H. Dutch, for appellees. MONKS, C. J. Appellees brought this action to enforce *See Lorden v. Coffey, 6 Mun. Corp. Cas. 113, and note. |