Imágenes de páginas
PDF
EPUB

on the hearing is ineffectual. Lyman v. Town of Cicero, 222 Ill. 379.

Counsel for appellee argues that it is clear that some of appellants were not injured, as they were present at the adjourned meeting. This court held in the case last cited that the statute must be complied with; that where a municipality attempts to fasten a charge upon the property of an individual the law authorizing the creation of such charge must be followed, irrespective of the question of injury or inconvenience to the property owner resulting from a failure to comply with the law. Proceedings for special assessments under this statute are purely the creation of statute, and jurisdiction can only be acquired in strict conformity therewith. (City of Casey v. Cincinnati, Hamilton and Dayton Railway Co. 263 Ill. 352.) It is conceded that ten days did not intervene between the passage of the resolution for this improvement and the public hearing.

Counsel for appellee argues that under the ruling of this court in Village of Homewood v. Granniss, 265 Ill. 135, the objection that ten days did not intervene between the adoption of the resolution and the public hearing cannot be availed of in this proceeding. In this counsel is in error. That decision was rendered in a collateral proceeding in an application for the sale of the lands for failure to pay an assessment. This objection was properly made in this direct proceeding. (City of Chicago v. Lamb, 266 Ill. 134.) The trial court should have sustained the objection to the confirmation judgment because of the failure to comply with this provision of the statute.

Counsel for appellants further argue that there is a substantial variance between the first estimate and the first resolution, in that the estimate omits to provide for the improvement of all or part of certain streets included in the first resolution. The ordinance agrees with the resolution as to the streets and parts of streets to be improved but differs from the first estimate. The engineer's estimate is the basis for the assessment. If there is a material difference between the work included in the ordinance and that included in the estimate there is a substantial variance, whether the work included in the ordinance is more or less than that of the estimate. (City of Chicago v. Terwilliger, 253 Ill. 395.) A substantial variance is one real or material, as distinguished from one merely technical. Clarke v. City of Chicago, supra; see, also, City of Chicago v. Gage, 237 Ill. 328; City of Chicago v. Soukup, 245 id. 634; Village of Glencoe v. Uthe, 253 id. 518.

It is argued by appellee that taking the first and second resolutions and the first and second estimates together the property owners could not be misled as to the streets and parts of streets that were to be improved. With this we cannot agree. The first resolution and the first estimate are in square conflict as to the portion of certain streets that are to be paved, and no explanation as to this difference is found in the record.

As there is a material variance between the first estimate, the resolution and the ordinance, the trial court erred in not sustaining the objection to the estimate on account of this variance. The other questions as to the variance between the ordinance and the estimate, as we read this record, are not of a substantial character.

The further objection is made that the ordinance provides for paving the entire surface of the roadway between Euclid avenue and Edgewood avenue without excluding the creek, and bridge over the creek, in said street. We understand that this creek is about thirty feet in width, with high embankments. The engineer apparently based his estimate on the entire improvement of this street without regard to the building of a bridge, or the filling in if no bridge was erected at this point, or, if the filling in was to be done, without making any provisions in the estimate, resolution or ordinance for carrying away the running water of the stream. Counsel for appellants requested the court to allow them to file a legal objection as to this question at the time the case was called for hearing on legal objections. Appellee insists that the objection came too late. Under the Local Improvement act, and especially sections 46, 47, 48, 49 and 52, the court may, for good cause shown, at any time while the proceedings are pending, before confirmation, allow new and additional objections to be filed or make any order altering or modifying the assessment. (Doran v. City of Murphysboro, 225 Ill. 514.) The court allowed this objection to be filed but refused to hear evidence with reference to the conditions and circumstances surrounding this street and creek. If the conditions are as stated by appellants,and it seems to be conceded in the brief of appellee that they are,—the trial court, under the reasoning in Lindblad v. Town of Normal, 224 Ill. 362, and cases cited, should not only have permitted this objection to be filed but should have heard evidence on the same, and if such evidence sustained the contention of counsel for appellants the objection should have been sustained, on the ground that the ordinance was uncertain and unreasonable and therefore void.

Several other objections are urged as to the ordinance being indefinite, uncertain and ambiguous. While the ordinance might have been improved in its wording in certain particulars urged here, as we understand this record we do not think it was so fatally defective on any of the other points urged.

The further objection is urged that the estimate fails to itemize separately the four-inch tile drain that is to be laid under the curbs on both sides of the street. We are disposed to hold, on this record, that these drains were a substantial, component element of the improvement and should have been separately estimated, under the holdings of this court in City of Peoria v. Ohl, 209 Ill. 52, City of Waukegan v. Wetzel, 261 id. 498, and Lyman v. Town of Cicero, supra.

venue.

It is further urged that error was committed in not allowing a change of venue from the trial judge. Some of the objectors did not join in this petition for a change of

The statute provides that a change of venue shall not be granted where there are two or more plaintiffs or defendants unless the application is made by or with the consent of all the parties, plaintiffs or defendants, except in condemnation proceedings. As this is not a condemnation proceeding the court did not err in refusing to grant the change of venue.

For the reasons stated the judgment of the city court must be reversed and the cause remanded, with directions to sustain the legal objections in question as to the assessment.

Reversed and remanded, with directions.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, vs.

MINNIE E. Targe, Exrx., Appellee.

Opinion filed April 22, 1915.

1. INHERITANCE TAX-it is only excess over indebtedness and expenses of administration which is subject to tax. The property of a decedent passes, by the intestate laws of this State, subject to his indebtedness and the expenses of administration, and it is only the excess over such indebtedness and expenses which is subject to an inheritance tax.

2. Same-fact that claim was not presented and allowed in the probate court is not material. If an estate is actually indebted to a person and the beneficiaries in good faith compromise the claim and pay it or become liable therefor, the estate to which the beneficiaries succeed is decreased by such amount, and it should be deducted in computing the inheritance tax, if nothing appears to impugn the good faith of the settlement. (In re Graves, 242 Ill. 212, distinguished.)

3. SAME-legislature had the right to fix rate of taxation upon succession to property. The legislature had the right to fix the rate of taxation upon the succession to property, and in the exercise of such right it has fixed certain exemptions and certain rates, the

exemptions being less and the rate more as the degree of kinship becomes more remote.

4. Same-exemption created by proviso to section 1 of the Inheritance Tax act does not apply to step-children. The language of the proviso to section 1 of the Inheritance Tax act which extends the exemption of a child to a child to whom the deceased stood in the acknowledged relation of parent if the relationship began before the child's fifteenth birthday and continued for ten years thereafter, provided "that the parents of such person so standing in such relation shall be deceased when such relationship commenced,” refers to the death of the parents of the child and thereby excludes step-children.

5. Same-exclusion of step-children from exemption is not an unlawful discrimination. The provisions of section 1 of the Inheritance Tax act extending the exemption of a child to adopted children, and, under certain circumstances, to children to whom the deceased stood in the acknowledged relation of parent, are not unconstitutional as creating a discrimination against step-children, as the latter have no legal rights in the property or home of the stepparent and the legislature is not bound to recognize such relation.

APPEAL from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.

P. J. LUCEY, Attorney General, and THOMAS J. YOUNG, (JOHN J. POULTON, of counsel,) for the People.

Oscar M. Wolff, for appellee.

Mr. Justice Dunn delivered the opinion of the court:

Two questions are presented by this record in regard to the inheritance tax upon the estate of Theodor Dackerman: First, whether the court erred in allowing a deduction from the value of the estate of $8703.60 on account of a claim against the estate; second, whether Minnie E. Tatge was entitled to any exemption upon the gift to her.

Theodor Dackerman and his son, William, were partners in the real estate business. The son died before the father, and upon the death of the latter the son's widow, Martha Dackerman, claimed that upon an accounting of the partnership business she would be entitled to $12,000. No

« AnteriorContinuar »