There is one question demanding the first consideration in all these cases involving the levy of taxes and assessments by the Common Council of the city of-Chicago. The counsel for the city object, that the Court of Common Pleas could not inquire into the regularity of the action of the Common Council, nor even into the question of their jurisdiction in the proceedings which we are now called upon to review, and that the only mode in which those matters can be properly inquired into by the courts, is on a return to a common law writ of certiorari. If this be so it puts an end to all further inquiry, and at once relieves us from the labor and responsibility of investigating and deciding the many and perplexing questions which have been argued at the bar. Unfortunately the counsel has been misled by the fact that most of the cases found in the reports have been brought up by writ of certiorari, where the law had not provided any other mode of reviewing the proceedings of municipal bodies, and when such is the case the writ of certiorari must necessarily be resorted to, or those jurisdictions would to a great extent become irresponsible to the law.
Ordinarily the corporate powers of cities have not been required to resort to the courts of law to collect their general and special revenues, and such was the case with Chicago till the passage of the law of 1857. Before the land on which a tax or assessment was levied could be sold for its payment, that law requires a resort to the courts for its condemnation, and permits the owner of the land to make a defense to the proceeding. The 14th section of that act, under which this proceeding was instituted, is as follows :
“ If, from any cause, the taxes and assessments charged in said collection warrants are not collected or paid on the lands or lots described in such warrants on or before the first Tuesday in January ensuing the date of said warrants, it shall be the duty of the collector to prepare and make report thereof to some court of general jurisdiction to be held in Chicago, at any vacation, special or general term thereof, for judgment against the lands, lots, and parcels of land, for the amount of taxes, assessments, interest and costs respectively due thereon; and he shall give ten days’ notice of his intended application before the first day of the said term of the said court, briefly specifying the nature of the respective warrants upon which such application is to be made, and requesting all persons interested therein to attend at such term; and the advertisement so published shall be deemed and taken to be suficient legal notice both of the aforesaid intended application by the collector to said court for judgment, and a refusal and a demand to pay the said taxes and assessment.”
Under this section the proceeding is instituted by the collector, and the 43rd section of the same act tells us in what mode the court shall proceed in the matter. It says:
“ It shall be the duty of the court upon calling the docket of said term, if any defense be offered by any of the owners of said property, or any person having a claim or interested therein, to hear and determine the same in a summary way, without pleadings ; and if no defense be made, the said court shall pronounce judgment against the said several lots, lands, pieces or parcels of land, as described in said collector’s reports, and shall thereupon direct said clerk to make out and issue an order for the sale of the same, which said order shall be in form, as nearly as may be, of that prescribed in the twenty-ninth section of an act entitled ‘An Act concerning the public revenue,’ approved February .26, 1839, by the general assembly of this State: Provided, That in all such cases where a defense is interposed, the trial of any issue or issues therein shall be disposed of with as little delay as possible, consistently with the demands of public justice at said term. But should justice require that for any cause the suit as to one or more owners should be delayed for more than twenty days, judgment shall then be rendered as to the other owners and lands, and process shall issue for the sale thereof, the same as in all other cases.”
Here then is an express provision that the owner or person interested in the land may make defense, and it cannot, we think, be reasonably contended that such defense shall not embrace everything which shows that the tax or assessment, to collect which the proceeding was instituted, ought not to be collected. Less than this would be but a mockery of justice. Anything which a court of law would examine into under a writ of certiorari may be considered on this trial, and even more, for the court may inquire de hors the proceedings of the Common Council, and see if any facts exist which renders the tax or assessment illegal, as well as into any substantial irregularity in the mode of assessing it, for which a court of law should set them aside.
In this case a defense was made. It was proved on the trial that a part of the improvement for which the assessment was levied, had already been made by private parties, without any contract with or liability by the city authorities, and this assessment was levied in part for the purpose of collecting money to pay for such improvement already voluntarily executed. For this purpose the law gave the Common Council no authority to levy a special assessment upon the property deemed benefited by the improvement already executed. The first section of the seventh chapter of the city charter provides that, “ the Common Council shall have power, from time to time, first, to cause any. street, alley or highway to be graded, leveled, paved, macadamized or planked, and keep the same in repair,” and the second section authorizes the Common Council to levy a special assessment upon the property deemed benefited by such improvement, to pay the expenses thereof. It is in these words: “ The expenses of any improvement mentioned in the foregoing section (except side walks and private drains) shall be assessed upon the real estate in any natural division benefited, with the costs of the proceedings therein in proportion, as nearly as may be, to the benefits resulting thereto ; provided, such assessment shall not exceed three per cent, per annum on the property assessed.” No doubt the Common Council may make the improvement mentioned in the first section, and levy a special assessment to pay the expenses thereof or to reimburse the city treasury; or they may estimate the cost of any improvement thus ordered, and levy an assessment therefor before the improvement is made, but neither the letter or the spirit of the statute can authorize them-to levy an assessment for an improvement which they do not cause to be made. If a party voluntarily improves a street, when no such improvement has been ordered by the council, they cannot adopt the work and become a collecting agency, and create a liability against the owners of the property benefited by the improvement, when no such liability could otherwise exist by law. When an improvement is once made and satisfactorily, by other parties, it is no concern of the Common Council by what means or agency it was made. If it was not caused by them, they are not responsible for it and have nothing to do with it. The law only authorizes them to assess for what they cause to be done. As this assessment was levied in part to pay for improvements already executed, without the order or direction or liability of the Common Council, it was not warranted by the law, and the court erred in rendering judgment for it, and that judgment must be reversed, and the cause remanded.
Judgment reversed.