Section 52 of the Local Improvement act authorizes the court before which any such proceeding may be pending, to modify, alter, change, annul or confirm any assessment, and make all orders necessary to make a true and just assessment of the cost of the improvement according to the principles of the act, and from time to time continue the application for that purpose as to the whole or any part of the premises. Under this section the court had the right to exclude from the assessment roll all of the land lying north of the north line of Hickory street. The additional tract, 200 feet square, included by the second amendment had not been assessed and no notice had been given with reference to it. If the court had power to bring into the assessment property not included in the roll, it could only be upon notice and the same opportunity to be heard as is given in case of an original assessment. The proceeding is not in personam but in rem. Notice is required to be given, not to the owner of the property, but to the person who paid the general taxes for the preceding year, and such notice gives the court jurisdiction to proceed against the property. The fact that the railroad company was in court, in pursuance of notice given for that purpose, opposing the assessment of one tract, gave no jurisdiction to assess another tract as to which no notice of assessment had been given. If the additional tract had belonged to one not appearing in court, no one would contend that it could be assessed without a notice of the same nature as the original notice, given in the same manner. Section 50, which provides for the distribution of a deficiency caused by the reduction of an assessment, provides that in case any portion of such deficiency be charged against property not represented in court, a new notice of the same nature as the original notice shall be given in the same manner as the original notice, to show cause why the assessment as increased should not be confirmed, and the owners of or parties interested shall have the right to object in the same

form and with the same effect as in case of the original assessment. The appellant was in court, by its attorneys, representing only the tract as to which notice of assessment had been given. The other tract was not before the court, and, of course, was not represented. After the order to change the roll was made the court inquired if the appellant cared to introduce any further evidence, and the appellant's counsel answered "No." The appellant could not at that time be called upon to answer as to the added tract for the court had not acquired jurisdiction of it, and it did not consent to any action of the court by declining to proceed. In addition to the lack of jurisdiction, there was no evidence that the added tract would receive any benefit from the assessment. The assessment roll was not evidence of benefit, for the tract was added to that roll arbitrarily, without any evidence on the question of benefits to it, and the evidence of the location itself was sufficient prima facie to show that there were no benefits, for, ordinarily, paving the bank of a stream cannot improve either the water or the land beneath it.

It is insisted that in the improvement of streets to be paid for by special taxation the law contemplates that the municipality shall pay for the improvement of street intersections. In such case the city council has the sole power of determining whether the improvement shall be paid for wholly by special taxation or in part only, and if in part only, what proportion shall be paid for by special taxation and what proportion by general taxation. (City of East St. Louis v. Illinois Central Railroad Co. 238 Ill. 296; City of Peru v. Bartels, 214 id. 515; Birket v. City of Peoria, 185 id. 369.) Land in the middle of a block is not contiguous to the street intersection but it is contiguous to the improvement, and all land contiguous to the improvement is properly assessed for its share of the cost of the whole improvement, including intersections of streets.

The assessment was of the whole width of the right of way between East avenue and West avenue, and it is insisted that the west half of the right of way is contiguous to West avenue but not to East avenue, and that therefore the assessment should have been confined to the east half. The right of way was contiguous to both avenues and it was proper to assess it as a whole.

The appellant offered in evidence the record of a special assessment proceeding against this same portion of its right of way for the paving of West avenue and other streets. It was insisted that there was but one scheme of improvement; that the two improvements should have been included in one ordinance; that the appellant's right of way has been once assessed, and that the carrying on of two proceedings, one by special taxation and one by special assessment, was for the purpose of assessing the right of way twice for the same thing. The evidence offered did not, by itself, tend to prove such a scheme or purpose and there was no offer of additional evidence. The record should have been admitted, however, for the other purpose for which it was offered. It would have shown that the right of way had already been specially assessed for the paving of West avenue, and would have had a material bearing upon the question to what extent the paving of East avenue also would be a benefit to the right of way.

In examining a witness called for the purpose of sustaining the assessment appellee's counsel asked the following question in chief: "I show you now the assessment roll filed in this case, with an assessment total of $6799.61 assessed against that portion of the Illinois Central right of way lying between the north line of Hickory street and the south line of River street, and I will ask you whether in your opinion that assessment exceeds the benefits that that property will derive from this improvement?" The question was objected to as leading, and the witness answered: "No, sir; I don't think it does, according to my assessment."

Substantially the same thing occurred with another witness. The objection should have been sustained. The question merely set up a mark for the witness to hit. That question was the ultimate fact to be determined. Witnesses could properly be called upon to give an opinion as to the amount that the property was benefited but not to determine the whole issue.

It is a serious question whether the amount of this assessment can be sustained under the evidence, and the errors occurring on the trial were such as to require a reversal of the judgment and the remandment of the cause for a new trial.

Reversed and remanded.

THE CITY OF WAUKEGAN, Appellant, vs. Edward P. DEWOLF et al. Appellees.

Opinion filed April 19, 1913.

I. PRACTICE-object of section 104 of Practice act, concerning certifying questions of law. The object of section 104 of the Practice act, authorizing parties to a suit or proceeding to make an agreed case containing the points of law at issue between them, is to enable the parties, by agreement, to submit the questions in dispute between them without the formality of a bill of exceptions.

2. SAME―when statements of fact will not be expunged from agreement. Whether a municipal improvement is a local improvement depends upon whether the particular facts bring the case within the legal meaning of the term, and hence the facts concerning the improvement are properly a part of an agreed case certified under section 104 of the Practice act and intended to present the sole question whether the improvement is a local one.

3. SPECIAL ASSESSMENTS-city's determination of what is local improvement is not final. The question what shall be considered a local improvement is committed, in the first instance, to the municipal authorities, but their determination is subject to review by the courts, and if it appears from the ordinance and the nature of the work that the improvement cannot properly be regarded as a local one, a special assessment cannot be maintained for its construction.

4. SAME-test in determining whether an improvement is local. If the purpose and effect of an improvement are to improve the locality the improvement is a local one though there is incidental benefit to the public, but if the primary purpose and effect are to benefit the public the improvement is not local although it may incidentally benefit property in the particular locality.

5. SAME when construction of viaduct is not a local improvement. The construction of a viaduct over a ravine for the primary purpose of restoring the continuity of a street which was severed by the ravine into two parts, the effect of the improvement being to restore to the public the use of a principal business street of the city, is not a local improvement, even though the improvement will benefit adjoining property more than property at a distance. (Louisville and Nashville Railroad Co. v. East St. Louis, 134 Ill. 656, explained.)

6. SAME what does not determine character of improvement. An improvement is not a local one merely because it is constructed in a particular locality, as every improvement must have a location and be nearer to some property than to others; nor is it local merely because it confers greater benefit upon some property than upon other property throughout the municipality.

VICKERS, J., dissenting.

APPEAL from the County Court of Lake county; the Hon. DAVID T. SMILEY, Judge, presiding.

ARTHUR BULKLEY, Corporation Counsel, for appellant.

HEYDECKER & PARMALEE, CLAIRE C. EDWARDS, and COOKE, POPE & POPE, for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The city of Waukegan, appellant, filed its petition in the county court of Lake county asking the court to confirm a special assessment to pay the cost of constructing a viaduct. The court sustained an objection of the appellees that the proposed work did not constitute a local improvement and dismissed the petition. The case is stated by counsel for appellant as follows: "This is a case wherein.