(dissenting). The controlling question in this ease is not without difficulty. It is, did the city council have the power to pass the ordinance to abandon this improvement, and to abolish the improvement district for all purposes, except' a settlement of outstanding debts, etc., of the district? I recognize the general rule as stated by Judge Dillon in 1 Dillon, Municipal Corp. § 589.
That the formation of improvement districts can be had only under statute authorizing them is true, and that there is in the statute no express authority to abolish them and abandon an improvement begun by them seems to be also true. The assessments for the tax to make the contemplated improvement in this case was upon a petition by a majority in value of the real estate owners in the district. A majority in value of the real estate owners of the district has been provided for. The party holding the contract for the construction of the waterworks, it is understood and conceded, is willing to surrender it, and makes no objection to the abandonment of the improvement. Was there any power to abandon it?
• If true that there were vested rights that would be violated or disregarded by the abandonment of the improvement, the abandonment of it, so far as it violated vested rights, would be unlawful, and could not be tolerated. But we understand there are no vested rights to be violated in this case. In such a case, it would be remarkable and extraordinary if there was no power to abandon this improvement — if the board of commissioners was' obliged to go ahead and collect the assessment, and make the improvement, although the majority in value of the real estate owners in the improvement district, for good reason, have' petitioned for its abandonment. The work may have been demonstrated to be impracticable.
It would seem that the power to abandon the improvement must necessarily exist, when there is a good reason for such abandonment. There are many cases which recognize this power in cases that are similar in principle to this one, and we cite quota: tions from some most in point.
In City of Chicago v. Barbian, 80 Ill. 482, the city instituted condemnation proceedings for the purpose of widening a street, and the compensation to be paid to the owners of property to be taken or damaged was ascertained by a jury, and a conditional judgment was entered. Also, although this is not shown in the report of the case, a special assessment was made by commissioners appointed by the-court to pay the compensation awarded, and was returned into court. Subsequently the city council repealed the ordinance ordering the improvement and dismissed the proceedings. Barbian, an owner of property in respect of which compensation had been awarded, petitioned for a writ of mandamus to compel the city to levy and collect a tax to pay his compensation or damages. The trial court overruled a demurrer to the petition, and awarded the writ, but the supreme court reversed the judgment, on the express ground that the city had the right to abandon the proposed improvement and dismiss the proceedings.
In City of Chicago v. Weber, 94 Ill. App. 562, the court held: “When, in the progress of proceedings to make improvements by special assessment under the act to provide for the incorporation of cities and villages, a village becomes annexed to a city, the city has the same power in respect to the proposed improvement and assessment which the village had prior to such annexation.
“The village of Rogers Park levied a special assessment, and issued its orders to the commissioners for making the same, to be paid only out of the money received from the collection of such assessment. Afterwards such village was annexed to and became a part of the city of Chicago. Held, that the city had a lawful right to discontinue the assessment proceedings and abandon the improvement,' to pay for which the assessment was made.” Citing numerous cases.
In that case the court said: “If the city may abandon such an improvement as the opening or widening of a street after the compensation in respect to private property proposed to be taken or damaged has been ascertained by the verdict of a jury and awarded by a judgment, and an assessment to pay the amount awarded has been made, confirmed and partially collected, a fortiori there may be an abandonment of an assessment of benefits for the improvement of a street, in which proceeding no question of damage to private property is involved. The owners of property assessed on account of special benefit to accrue to it by reason of the proposed improvement of a street have no vested right to continuance of the proceedings.1 But counsel for appellee contend that the city owed to the commissioners, who made the assessments set forth in the declaration,- and under whom appellee claims, the duty of continuing and prosecuting the proceedings and collecting the assessment.” And the court then proceeds to show at length that the commissioners have no vested right to have the improvement carried out. A like principle is involved in Brokaw v. Terre Haute, 7 Am. & Eng. Corp. Cases, 452; Noonan v. People (Ill.), 55 N. E. 679; McPike v. Alton, 58 N. E. 301.
Section 5329 Sandels & Hill’s Digest, in the last sentence of that section, provides that, “if for any cause the improvement shall not be made, said costs shall be a charge on the real property in the district, and shall be raised and paid by assessment in the manner hereinafter prescribed.” Does not this imply that the work may be stopped after it is commenced?
I am 'of the opinión that the power to discontinue and abandon such improvement, when the abandonment does not violate vested -rights, is implied, and exists in the city council, and was properly exercised in this case.