Town of Springfield v. People's Deposit Bank special session called by the clerk of the board at the place of business of one of its members, which was not the usual meeting place, was void. Same-Assessment Made by Unauthorized Person-Failure to Appoint Board of Equalization.-An assessment made by one of the trustees of a town by permission of his associates, when he had not been elected and had not qualified as assessor, was void, especially as no board of equalization was appointed to pass upon complaints of taxpayers. Appeal from circuit court, Washington county. "To be officially reported.' Action by the town of Springfield against the People's Deposit Bank to recover taxes. Judgment for defendant, and plaintiff appeals. Affirmed. I. H. Thurman and J. W. S. Clements, for appellant. O'REAR, J. Appellant, town of Springfield, Ky., is a town of the sixth class, and brings this suit against appellee to recover taxes alleged to have been assessed against its property, in common with other property in that town, for the year 1894. It appears that those acting as members of the board of trustees had failed to provide a regular place of meeting of the board, and had been in the habit of meeting at the law office of Mr. Thurman, their legal adviser. On the 15th day of February they met in special session at the saloon of one Green, who was a member of the board of trustees, having been called into that extra session by the clerk of the board. The chairman of the board was not present; whereupon R. B. Curry, one of its members, was chosen president pro tem. The board, as then constituted, passed the following order: "February 15, 1894. At a meeting of the board of trustees held at the saloon of John F. Green, in said town, there were present R. B. Curry, John F. Green, and Robert Noe. C. Cunningham, the chairman, not being present, R. B. Curry was elected chairman pro tem. Ordered that the levy for town taxes for the year 1894 be 40 cents on each $100.00 of property in said town, and one dollar poll tax for town purposes. The meeting then adjourned." One of the trustees, by permission of his associates, undertook to and did assess the property of the town for the fiscal year, but without being elected or qualified as assessor. Nor was a board of equalization appointed after the assessments to pass upon complaints of taxpayers. Other objections were urged to the levy and attempted collection by appellant, but the foregoing we deem sufficient to notice. The circuit court adjudged the levy and assessments insufficient, and we think correctly so. The place and manner of the meeting at which the levy ordinance was adopted was not in conformity to law, nor was the assessment. On this last point, Judge Cooley, in his work on Taxation, says (pages 352-354): "Necessity for Assessment. An assessment, when taxes are to be levied upon a valuation, is obviously indispensable. It is required as the first step in the proceed City of Chicago v. Spoor ings against individual subjects of taxation, and is the foundation of all which follow it. Without an assessment they have no support, and are nullities. The assessment is therefore the most important of all the proceedings in taxation, and the provisions to insure its accomplishing its office are commonly very full and particular. The assessment being so important, the statutory provisions respecting its preparation and contents ought to be observed with particularity. They are prescribed in order to secure equality and uniformity in the contributions which are demanded for the public service, and if its officers, instead of observing them, may substitute a discretion of their own, the most important security which has been devised for the protection of the citizens in tax cases might be rendered valueless. The assessment must, therefore, be made by the proper officers, or it will be void; and if a board of review, which has the power to appoint the assessors, and afterwards to review their work, should appoint any of their own members to that office, the appointment would be void, and the assessment made by the appointees illegal. So the assessment will be void if the assessors delegate the office of making it to a clerk." The important and sovereign. power of levying taxes against the citizens' property, while an essential act of government, must be attended with that circumspection of care and manner that will insure publicity, certainty, and legality of the act done. Such loose methods as shown in this case, if tolerated, would practically leave the property of the citizens subject to seizure and appropriation at the will and upon the act of a mere caucus of a town council; that is, at a casual meeting of a majority of its members, at any place within the town, and at which their constituents would have no opportuity to be present, and by that potent influence, or legitimate representation, have their views and interests directly considered. It was to prevent such evils that the present statutes on this subject were enacted. The judgment of the circuit court is affirmed. CITY OF CHICAGO v. SPOOR et al. (Supreme Court of Illinois, April 18, 1901.) [60 N. E. Rep. 540.] Viaduct over Street Railway-Diversion of Traffic-Damages Not Recoverable for.-Where a viaduct, beginning in front of plaintiff's property, was erected over railway tracks so that street cars could cross without stopping, plaintiff could not recover damages caused by the diversion of traffic, not because fewer people passed over the street, but because fewer people came onto the street from surrounding places of business and stopped there, since plaintiff could not recover for such damages. Same Same Evidence.-Where, in an action against a city for damages to abutting property, caused by a public improvement, the admission of evidence of damages which included damages caused by City of Chicago v. Spoor diversion of traffic from a street could not be cured by instructions, since such evidence was not legitimate for any purpose. Same Same Elements of Damage-Instructions.-Where, in an action against a city for damages to abutting property, caused by the construction of a viaduct on the street, the defendant requested an instruction that plaintiff could not recover for any injury caused by a diversion of traffic from such street in front of the premises by the construction of a viaduct, it was error to modify such'instruction by adding to it that obstruction to the ingress and egress to and from the premises would be an element of damages; that diversion of traffic was an element of damages too remote and speculative to be the basis of recovery, where a party sought them for loss of profits to his business, but, if the question was not loss of profits, but damages to abutting property, every element directly affecting the market value of the property by reason of the improvement should be considered,-since defendant was entitled to a clear statement of the rule of law as asked, and it might be inferred from such modification that it was proper to consider diversion of traffic in a suit for damages to abutting property. Same-Same-Same-Evidence-Waiver of Objections.-Where, in an action against a city for damages to abutting property, caused by the construction of a viaduct on the street in front of it, plaintiff's witnesses, in testifying as to damages, did not specify any of the elements thereof, defendant did not waive objections to such evidence that it included damages for diversion of traffic by bringing such elements out on cross-examination, where the cross-examination was for the purpose of showing the basis of witnesses' estimate to be unsound and illegal, for the purpose of having the testimony stricken, since defendant did not thereby adopt a theory of law against which it was protesting. Same Same Same Same.-Defendant did not waive such objection by introducing evidence that the viaduct increased facilities for travel, bringing the property nearer to the business center, thereby benefiting it. Evidence having been admitted to show that the property was injured by the improvement, it was defendant's right to contradict it. Same Same-Evidence of Benefit to Other Property of Plaintiff.—In an action against a city for damages to abutting property, caused by the construction of a viaduct on the street in front of it, other property of plaintiff's facing on another street, being separated by an alley from the property claimed to be injured, it was proper to refuse evidence of benefits to such property, caused by the improvement. Same Same Court Commenting upon Photograph Offered in Evidence. It was error for the court, in admitting a photograph offered to show the location of buildings on an approach to a viaduct, and the appearance of such buildings, to say that it was for the jury to say how much stock they take in testimony of that kind, since it was an intimation that the jury ought not to give any weight to the evidence. Same Same-Defense by City-Improvement Irregularly Authorized. -In an action against a city for damages to abutting property, caused by the construction of a viaduct on a street in front of it, it is no defense that the viaduct was constructed under an order of the city council, when it should have been done in pursuance of an ordinance, since the improvement was within the authority of the defendant, and any irregular or defective exercise of the power would be no protection to the city. MAGRUDER, J., dissenting. Appeal from appellate court, First district. Suit by John A. Spoor and others against the city of Chicago to recover damages caused by a public improvement. From a judgment of the appellate court (91 Ill. App. 472) affirming a judgment in favor of plaintiffs, defendant appeals. Reversed. Charles M. Walker, Corp. Counsel, and Thomas J. Sutherland, for appellant. City of Chicago v. Spoor Winston & Meagher (Silas H. Strawn and Ralph M. Shaw, of counsel), for appellees. CARTWRIGHT, J. Block 12 of the superior court partition of the W. of the N. W. of section 4, township 38, range 14, in Cook county, is in the city of Chicago, and is bounded on the north by Forty-First street, on the east by Emerald avenue, on the south by Root street, and on the west by Halsted street. The block contains 34 lots, and in 1896 appellees were the owners of the entire block except 5 lots. The conveyance to them was of the whole block except lots 18, 19, and 30, and they afterwards sold lots 20 and 21. The west side of Halsted street was the private property of the Union Stock Yards & Transit Company, and Root street, Forty-First street, and Fortieth street (which was the next one north) extended east from Halsted street, but did not cross that street. Fortieth street, one block north of this property, was occupied with 17 railroad tracks of the Union Stock Yards & Transit Company. These tracks spread out in Fortieth street near the entrance to Halsted street and the stock yards, and occupied 350 feet of Halsted street. Formerly, horse cars ran on Halsted street to Fortieth street, and stopped. The passengers had to get off, cross the railroad tracks on foot, and transfer to a car on the opposite side. In October, 1895, the city council ordered the street-railway company to run its cars over the railroad tracks without causing passengers to transfer. By conference between the Union Stock Yards & Transit Company, the City Railway Company, and the appellant it was agreed that a viaduct should be built over the tracks, and the City Railway Company and the Union Stock Yards & Transit Company agreed to defray the expenses of the viaduct. The object of the viaduct was to carry the street traffic over the tracks on account of the dangers and delays at the crossing. On January 6, 1896, the city council passed an order providing for the construction of the viaduct, beginning in front of said block 12, and running north. The stock yards extended from a little north of Thirty-Ninth street as far south as Forty-Seventh street, on the west side of Halsted. The viaduct was begun about the middle of February, 1896, and completed in September of that year. The approach on Halsted street began in front of lot 25, and rose about 1 foot in 30 from that point north to lot 34, at the northwest corner of the block. At the northwest corner of lot 34 the approach was about 9 feet above the natural surface, and there was an approach on Forty-First street adjoining the block connecting with the approach on Halsted street. On lot 25 there was a two-story frame building, which did not belong to appellees, and the other lots were vacant. After the completion of the viaduct, appellees began this suit in the circuit court of Cook county to recover damages alleged in their declaration to have been sustained to lots 25 to 34, inclusive, except lot 30, by destroy City of Chicago v. Spoor ing the free and convenient access to and from the premises from the street, and cutting off light and air. Additional counts were filed in 1897 and 1899, charging interference with access to and from the lots. Appellant pleaded the general issue, and there was a trial. The jury returned a verdict of guilty, and assessed appellees' damages at $10,750, and judgment was entered on the verdict. An appeal was taken to the appellate court for the First district, where the judgment was affirmed, and this appeal was then taken from the judgment of the appellate court. On the trial five witnesses were called by plaintiffs, and each one testified to the fair cash market value of the property before the passage of the order for the viaduct and such value after the completion of the viaduct, and each one said that he attributed the change in valuation to the construction of the viaduct. The different witnesses placed the market value before the viaduct was built at sums ranging from $150 to $200 a front foot and from $75 to $90 afterwards. The lots for which damages were claimed had a total frontage of 225 feet on Halsted street. On the direct examination no inquiry was made of either of these witnesses, and nothing was developed, as to the nature of the alleged injury to the property, the elements of damages included, or the basis for his judgment. These witnesses were cross-examined by defendant for the purpose of ascertaining on what basis they estimated the dam The most prominent element of damage in the minds of the witnesses was the character of the traffic and travel on Halsted street after the viaduct was built and the fact that fewer people came from the stock yards upon the street, so that less business could be done there. The plaintiff Spoor was one of these witnesses, and on cross-examination he said that before the viaduct was built people came from the stock yards over the tracks at Fortieth street upon Halsted street. and that fact brought business to the shops and stores; that people coming from the stock yards a block north of this property could not come on Halsted street, so that their trade was lost; that after the viaduct was built there was more traffic on the street than before, but that it was not of a character to stop there; that, instead of the old horse cars that came along and stopped on each side of the tracks, there was a trolley system, and the cars ran right through, stopping only at street crossings; that the blocking of the tracks across Halsted street was a benefit to the property, and it was an injury to this property to have through travel; that the advantage to the property resulted not so much from traffic on the street as the ability of the traffic to stop and get at the place, and that the through traffic was a serious damage to the property because people did not walk on the street, but went past on Another witness (John W. Sweeney), testified that the former condition, when people got off and walked across the tracks, and found other cars, or had to wait, was a benefit to cars. |