Opinion of the Court. Syllabus.

Per CURIAM: We think the ordinance contained a sufficient general description of the land sought to be condemned. But as the city was not entitled to judgment upon an application made by the collector of Chicago, the judgment of the court below must be affirmed.

Judgment affirmed.

MILTON JEROME

บ.

THE CITY OF CHICAGO.

1. SPECIAL ASSESSMENTS—necessity of a proper objection, to admit evidence. In an application for a judgment upon a special assessment in the city of Chicago, the objector offered to prove that no notice had been given of the application for confirmation of the assessment, as required by the city charter: Held, as no such objection had been filed, the evidence was properly excluded.

2. SAME-discretion as to filing objection at the hearing. And upon objection that the court below erred in refusing to allow such objection to be filed on the hearing, it was held, that that was a matter resting in the discretion of the court, and as there was no affidavit upon which the application to file it was based, this court could not say that the discretion had been abused.

WRIT OF ERROR to the Superior Court of Chicago.

Mr. EDWARD ROBY, for the plaintiff in error.

Mr. M. F. TULEY, for the defendant in error.

Per CURIAM: This was an application to the Superior Court of Chicago, at the March term, 1870, for judgment upon the city collector's report of a special assessment warrant for curbing, with curb walls, West Monroe Street, in the city of Chicago.

The only question arising upon the bill of exceptions, is the

62 286 144 392

Opinion of the Court. Syllabus.

exclusion of evidence offered by the objector, that no notice was given of the application for confirmation by the common council. There was no such objection filed, and the evidence. was properly excluded.

But it is also insisted that the court erred in refusing to allow the objector to file such objection upon the hearing. That was discretionary with the court, and as there was no affidavit upon which the application was based, we can not say that the discretion was abused.

The description of the improvement in the collector's report and notice, contains the words "excepting such portions of the above described work which have already been done in a suitable manner." If the ordinance had been introduced, and it had appeared by it that the work was described in that manner, and the ordinance did not define the work which had been done in a suitable manner, the case would have fallen within that of Foss v. Chicago, 56 Ill. 354. But inasmuch as the ordinance was not introduced, we can not say that the portion of the work assumed to have been already done in a suitable manner, was not described.

No error being apparent upon the record, the judgment of the court below must be affirmed.

Judgment affirmed.

M. O. WALKER

v.

THE CITY OF CHICAGO.

1. SPECIAL ASSESSMENTS in the city of Chicago-by whom to be determined— validity of an ordinance in that regard. Under the law on the subject of special assessments in the city of Chicago, for public improvements, the responsibility of prescribing what improvements shall be made, and the mode, manner, and extent of them is upon the common council. An ordinance which undertakes to vest in the board of public works the discretion of determining either the mode, manner, or extent of an improvement is void.

1871.] LANKENAN & CASTLE v. PEOPLE ex rel. REXFORD. 287

Opinion of the Court.

APPEAL from the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

This is an appeal from a judgment rendered upon a special

assessment warrant.

Mr. EDWARD ROBY, for the appellant.

Mr. M. F. TULEY, for the appellee.

Per CURIAM: The ordinance in this case is in the precise terms of that in the case of Foss v. City of Chicago, 56 Ill. 354, and there held void.

The judgment is reversed and the cause remanded.

Judgment reversed.

JOHN D. LANKENAN

v.

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. HEBER S. REXFORD, County Treasurer, etc.,

and

CHARLES W. CASTLE

v.

SAME.*

APPEALS from the Circuit Court of Cook County; the Hon. HENRY BOOTH, Judge, presiding.

* These cases should have followed the case of Greeley et al. v. The People of the State of Illinois, 60 Ill. 19, but were unavoidably omitted from their proper place.

62 288 137

Syllabus. Opinion of the Court.

Mr. GEORGE SCOVILLE, for the appellants.

Mr. FRANCIS ADAMS, for the appellee.

Per CURIAM: The questions presented in these cases are discussed in the case of Greeley v. The People, decided at the present term.

Judgments affirmed.

60

CHARLES FOLLANSBEE

v.

THE CITY OF CHICAGO.

1. SPECIAL ASSESSMENTS IN CHICAGO-defense to the application for judgment. Upon the application of the city collector of Chicago for judgment upon a special assessment warrant for the opening of a certain street, sixtysix feet wide, under an objection to the recovery of the judgment, evidence was introduced showing that the same street had been opened to the width of sixty feet, with a ditch on both sides, for the period of three years before the proceedings: Held, that this constituted, prima facie, a defense.

2. SAME-power of the collector to apply for judgment. And besides, the collector's authority to apply for the judgment had been abrogated by the constitution of 1870.

APPEAL from the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge presiding.

Mr. EDWARD ROBY, for the appellant.

Mr. M. F. TULEY, for the appellee.

Per CURIAM: This is an appeal from the judgment of the Superior Court of Cook County, rendered upon the application of the collector of the city of Chicago, upon a special assessment warrant for the opening of a street sixty-six feet wide, from West Madison Street to West Twelfth Street, properly

Opinion of the Court. Syllabus.

described in the proceedings. Under an objection to the recovery of the judgment, made on behalf of appellant to that effect, evidence was introduced showing that the same street had been opened to the width of sixty feet, with a ditch on both sides, for the period of three years before these proceedings.

This evidence was given by an unimpeached witness, and stands upon the record uncontradicted. Prima facie, it constituted a defense. The collector was unauthorized to apply for judgment.

The judgment must be reversed and the cause remanded. Judgment reversed.

THOMAS H. BROWN et al.

v.

THE CITY OF CHICAGO.*

1. SPECIAL ASSESSMENTS IN CHICAGO--who may apply for judgment. The authority of the city collector of Chicago to apply for judgment for the sale of real estate, for the payment of unpaid special assessments, was abrogated by the constitution of 1870.

2. SAME-certificate of publication. The certificate of publication of the commissioners' notice of their meeting to make a special assessment in the city of Chicago, and of the notice of application for confirmation of the assessment, is fatally defective if it omit to state the dates of the first and last papers containing such notices, or language equivalent thereto.

APPEALS from the Superior Court of Cook County.

These cases arise upon the application of the city collector of Chicago for judgments upon a special assessment warrant. The court below granted orders for the sale of the real estate

*This case and the cases of the following named appellants against the city of Chicago are all considered in the same opinion: Adams & Parker, Peter Schuttler et al., and Francis S. How et al.

19-62D ILL.