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presented to the trial judge, in strict con- , presented to Judge Pomeroy on June 23d. formity with the order of the court, five days On September 27th, after the expiration of before the expiration of the extension of the extension of time, the bill of exceptions time. It was retained by the judge without was signed without any further order being his signature until July 31st, when he signed entered, and it was not filed until October it, and it was immediately filed in the office 14th, 17 days later. The next day an order of the clerk. It could not have been filed was entered by the chief justice of the cirsooner, and the appellants could do no more cuit court of Cook county, ordering the bill than they had done when they presented the of exceptions to be filed nunc pro tunc as bill of exceptions to the judge within the of June 23, 1913. On motion of the appellee time fixed by the order of the court.

this bill of exceptions was stricken from the [2] It seems to be thought that the bill record because not filed within the time albeing signed after the expiration of the ex- | lowed by law. It was held that Judge Pomtension of time, an order to ile the same eroy, when he signed the bill of exceptions, nunc pro tunc was necessary. No such order could have entered an order allowing it to was required. If the party presenting the be filed nunc pro tunc as of June 23, 1913, bill had complied with the order of the or it could have been filed by the clerk as court, he had done all that was necessary to of the date it was signed by Judge Pomeroy, entitle him to file the bill. The delay caused citing Hill Co. v. United States Guaranty by the failure of the judge to sign the bill Co., supra. In no case has a bill of excepat once could not prejudice the party. When tions, which was presented to the trial judge the signature of the judge was attached to within the time allowed for that purpose and the bill, it must be regarded as authenticat- was signed by him after the expiration of ing it in the manner required by law and au- the time and immediately filed with the clerk, thorizing it to be filed. The act of the judge been stricken from the record because there in signing amounted to a direction to file the was no order to file it nunc pro tunc. Such

a ruling would be extremely technical and bill of exceptions, and the bill was properly filed and became a part of the record. In unjust. The facts by reason of which the the case of Hall v. Royal Neighbors, supra, tions regarded as a part of the record clearly

party is entitled to have his bill of excepthe bill of exceptions was stricken from the

appear. It has been the practice of trial record. It was signed by the judge 7 days before the expiration of the time allowed for courts and of this court to permit the bill of that purpose, but was not filed until 21 days and no reason is shown why this is not a

exceptions to be filed as a part of the record, later-two weeks after the expiration of the

proper practice.

The motion to expunge the time and the failure to file it was not due

bill of exceptions will be denied. to any neglect or delay of the judge, but was the neglect of the party. In Hill Co. v.

[3] A motion was, however, allowed at the United States Guaranty Co., supra, on June October term, expunging that part of the bill

of exceptions referring to the proceedings 15, 1908, the time for filing the bill of excep prior to the January term, 1910, because no tions was extended 60 days from June 27th. bill of exceptions to the rulings of the court The bill was presented to the judge for signa- made in such proceedings was taken at the ture on June 25th, was signed on September term at which such rulings were made or 28th, and filed in the clerk's office on the within any extension of such time, but such same day as of that date and not as of June exceptions appear only in a bill of exceptions 25th. The case is precisely similar to this taken at a subsequent term, when the trial case, and a motion to strike the bill of ex.

of the question of benefits occurred. Village ceptions in that case was denied. In People of Franklin Park v. Franklin, 228 Ill. 591, v. Rosenwald, supra, the time for filing the 81 N. E. 1132. All legal objections which debill of exceptions expired on October 11, 1914. pend upon the evidence for their determinaIt was presented on October 10, 1914, to a tion are therefore excluded from our conjudge of the municipal court, who did not

sideration. Some objections, however, are try the case. Afterward the judge who tried argued which are claimed to arise upon the the case signed the bill of exceptions under record without any bill of exceptions. the date “this 21st day of October, A. D.

[4] The ordinance provides that State 1914, nunc pro tunc as of October 10, 1914." street, between certain limits, shall be imThere was no authority for presenting the proved by paving and otherwise. bill of exceptions for settlement to a judge vides that in a portion of the street a conwho did not try the case, and there was no crete marginal curb shall be set parallel to presentation to any judge who was author- and 10 feet distant on each side of the center ized to settle the bill of exceptions within line of the street, and that the space between the time fixed for that purpose, and the mo such curbs shall not be paved or otherwise tion to strike the bill of exceptions in that included within the improvement, but shall case was allowed. In Illinois Improvement be improved and the improvement paid for & Ballast Co. v. Heinsen, supra, the case was in accordance with the provisions of orditried by Judge Pomeroy and the time for

nance No. 1796, entitled: filing the bill of exceptions was extended to

“An ordinance providing_for the removal of August 15, 1913. The bill of exceptions was the tracks of the East St. Louis and Suburban

It pro

Railway Company from the sides of State street, of the street that are excavated, which shall and replacing said tracks in the center of said | be pure, clean loam or earth, free from rubstreet, and also providing for the manner and style of improvement of State street from the bish, cinders, etc., and form a solid foundaeasterly end of the present paved portion of said tion, and to haul to such points within 2,000 State street to the easterly limits of the city feet as the board of local improvements may of East St. Louis, and what portion thereof direct and level off all surplus excavated shall be improved by or paid for by the East St. Louis and Suburban Railway Company," material, while there is no estimate of the etc.

cost of such loam or earth that may be reIt is insisted that the provision that this quired for filling, or of the hauling. It is

also contended that this provision improperportion of the street shall be improved and the improvement paid for in accordance with ly delegates power to the board of local imthe terms and provisions of Ordinance No. provements. The estimate contained an item 1796 made the improvement of that portion filler on six inches Portland cement concrete

of "brick paving with Portland cement grout of the street a part of the scheme of improve foundation and one and one-half inches of ment involved in this proceeding, and that it was essential that Ordinance No. 1796 items of "excavation placed in ill and prep

sand, complete in place.” It also contained should be set out in the petition to show the aration of subgrade," and "excavation re nature, extent, and character of the improve moved and preparation of subgrade.” The ment. This claim is not well founded. The estimate stated that it included all labor and presumption to be drawn from the language material, and these items of brick paving, of the ordinance and the title of Ordinance complete in place, including labor and maNo. 1796 is that the improvement of that terial, and of excavating, filling, and preparaportion of the street was provided for by the tion of subgrade, necessarily included the latter ordinance, and that such improvement loam and earth required for the filling and was not a part of the scheme of improvement the hauling necessary to dispose of the surcovered by the present ordinance. The only plus excavated material. It is not necessary, object of referring to it in the ordinance is even if it were possible, for the ordinance to to describe the improvement intended and to set forth in minute detail every particular exclude from it the part of the street pro- of the improvement and every circumstance vided for by Ordinance No. 1796.

of the work. A substantial compliance with [5] The ordinance provides for curbing set the statute is all that is necessary, and some on edge and resting on concrete 6 inches deep discretion as to the details of the work must by 12 inches wide, and backed with like con necessarily be left to the board of local imcrete 6 inches wide and 8 inches deep. The provements. City of Chicago v. Le Moyne, objection is made that the estimate did not 243 I11. 379, 90 N. E. 746; City of Watseka v. include the cost of this concrete fouting and Orebaugh, 266 11. 579, 107 N. E 887. backing. The estimate contained an item for

What has been said applies also to the 38,170 lineal feet of sandstone curb, 6 inches objection that the ordinance requires all soft by 18 inches, set in concrete, complete in and spongy places which develop in rolling place, $32,444.50. The estimate stated that to be dug out and replaced with crushed it included labor and material, and this item stone and re-rolled until firmly compacted, was sufficient to include the concrete founda- and directs that the cost of necessary stone tion and backing.

shall be allowed to the contractor, and that [6] It has been frequently held that it is all junctions with other pavements shall be not essential that the estimate should con- neatly made, and that portions of said pave tain a detailed statement of the amount and ment may be ordered relaid by the contraccharacter of material that will be necessary tor at actual cost as determined by the ento complete the improvement. It is not the gineer, while there is no estimate of the duty of the engineer in making the estimate cost of this work. to determine the character of the material

The cost of the concrete foundation under to be used, but merely to estimate the cost the paved roadway is included in the estiof the improvement described, and he is mate of the engineer for 92,810 square yards only required to itemize the estimate to the of brick paving, and the vitrified service satisfaction of the board of local improve-pipe is estimated as follows: ments. The estimate is sufficiently itemized,

1732 lineal feet ten-inch vitrified clay pipe so far as the property owners are concerned, connections from catch-basins, complete in place, if it is specific enough to give them a general $952." idea of the estimated cost of the substantial [8, 9] It is insisted that the ordinance is component elements of the improvement. void because it provides for the reconstrucCity of Chicago v. Underwood, 258 Ill. 116, tion and widening of a bridge over the 101 N. E. 261; Hulbert v. City of Chicago, drainage canal, which, it is argued, in its 213 Ill. 452, 72 N. E. 1097; Connecticut Mu- very nature is a public improvement, and tual Life Ins. Co. v. City of Chicago, 217 should be paid for out of general taxes. Ill. 352, 75 N, E. 365.

What is a local improvement is a question of [7] The ordinance requires the contractor to law, but whether the facts in the particular provide necessary filling that may be requir- case bring an improvement within the defini

er."

improvement is a question of fact. City of , character as those in the territory local to the Waukegan v. De Wolf, 258 Ill. 374, 101 N. E. proposed improvement.” 532, 45 L, R. A. (N. S.) 918, Ann. Cas. 1914B, Objection being made and objection over538. That question is for the determination ruled, the witness answered: of the municipal authorities in the first in "In this district the slashes have no comparistance. It can be determined only upon con- son to what they were in East St. Louis propsideration of the nature of the work, the situation of the improvement, and the sur After having been cross-examined, the witrounding conditions, and its decision depends ness on re-direct examination was asked this on a consideration of the evidence. Since question: there is no bill of exceptions containing this “You were just asked whether or not you evidence before us, we cannot consider that would say if the property abutting on State

street is 4 or 5 or 6 feet lower than the street, question.

and so situated that you cannot raise a crop Objection is made to the certificate of the on it for a number of years, would you still say ordinance attached to the petition because it is benefited $5 a foot, and you answered yes. it purports to be signed in the name of the State whether or not you base that on any expecity clerk by a deputy, while the city clerk rience or your observation in the practice of real

estate in East St. Louis." of the city of East St. Louis has no deputy. This is a fact that can only be shown by evi

Objection was overruled, and the witness

answered: dence, and in the absence of a bill of excep

"I base that on the knowledge of past expetions the objection cannot be considered.

rience in East St. Louis, where streets have been The same answer may be made to the ob- raised from 1 to 13 feet, and the same assessjection that one of the commissioners to ment was spread over that district, and everymake the assessment was an employé of the body was satisfied to pay the assessment, and it city, and to the objection that another of has been a benefit equal and more than the the commissioners never took the oath re feet below the street.

amount of the assessment, where it has been 10

The construction of imquired by the statute.

provements above the natural level of the con[10] In the trial of the question of bene- tiguous land is the common practice all over

East St. Louis." fits many witnesses were introduced on elther side, and there was much difference of He was then asked, on cross-examination, opinion as to the effect of the improvement if it was not true that the improvement on upon the value of property involved. State Division avenue cost about $16 a foot, and if street is the main thoroughfare between East that property cannot be bought to-day for St. Louis and Belleville. The improvement $15. An objection to this question was susextends to the boundary line between the tained, and the objectors offered to prove by two municipalities, which are adjoining. the witness that property in the built-up porMuch of the property along the line of the tions of East St. Louis near the downtown improvement is farm property, some of which district, at Eighth street and Division aveiş vacant. Some of it is very low and is sev- nue, where improvements were made at a eral feet below the level of the street. The cost of about $16 a lineal foot, can to-day be testimony of the witnesses for the petitioner bought for $15 a foot, but the court refused was that all the land on either side of the to admit the evidence. This whole examinastreet, whether high or low, dry, under wa

tion was improper. The petitioner had no ter or out of water, or subject to overflow so right to introduce evidence as to the condithat it could not be cultivated, would be tion, in a state of nature, of parts of the benefited $5 a front foot, without any dis- city not affected by this improvement for the tinction. The petitioner introduced å wit- purpose of affording a comparison between ness and asked the following question:

those lands and the lands involved in the "You speak of water inundating some of the present proceeding, and to show that in those land in this territory; state if that is a condi- parts of the city, under similar circumstanction common to East St. Louis and practically es, improvements had been made, and that all of its area."

everybody had been satisfied with the assessAn objection was overruled, and the wit- ment and the property had been benefited to ness answered, “It is.” He was then asked an extent equal to or greater than the

amount of the assessment. The jury were to state, in a general way, whether or not the land within the territory assessed in this thus invited to make a comparison between case, so far as being subject to inundation, an improvement and an assessment now prois any different from land generally in the posed to be made and another improvement territory of the improvement and in the city in the past, of a character not shown and

and assessment made at some indefinite time of East St. Louis. Over objection he was

under circumstances then existing but not permitted to answer, "Not different at all. It is really better than it is in East St. Louis. shown, and to compare the increase in value When I say East St. Louis I mean the down the anticipated increase in value to the prop

arising since the previous assessment with town district.” He was then asked: “State whether or not, in a state of nature, the if such an examination had been proper, then

erty involved in this proceeding. Moreover, downtown district of East St. Louis, or the parts of East St. Louis other than this territory, had certainly the appellants ought to have been any sloughs and slasbes subtantially the same in permitted to show that the property involved

114 N.E.-60

In the earlier assessment was now worth less roads from those additions extending several than the assessment amounted to. Examina- blocks to State street. These additions were tion of a similar character was permitted in tributary to State street, which was the main the case of other witnesses, and was errone- thoroughfare by which their inhabitants ous.

could reach East St. Louis. The property George Distler, a witness for the appellee, owners there had a special interest in State having testified that the average increase in street different from that of the general pubvalues by reason of the improvement would lic, inasmuch as it was their means of access be $7 a foot, on cross-examination stated that to the property, and since the improvement he did not think it would be long until all tended to make the means of access better that property would increase more than the and more convenient it tended to add specialcost of the improvement; that if East St. ì ly to the value of their property. The case Louis grows the way it has, it will not take is not similar to that of the case of City of 15 years. The appellants moved to exclude Kankakee v. Illinois Central Railroad Co., the evidence of this witness as to benefits 263 Ill. 589, 105 N. E. 731. There the strip because he included the improper element of land which was found not subject to asof future growth of the city. The court de- sessment was not only not contiguous to the nied the motion. It is manifest, however, street improved, but the street improved was from the examination of this witness that his of no advantage to the property other than opinion as to the immediate increase in the the general advantage of improved streets to value of the property was based, not upon all the public. In that case the property the future growth of the city, but the present which was held not to be benefited was on the construction of the improvement.

west side of a railroad which was in a cut, [11] The court refused to give to the jury while the street improved was on the east side instructions 17 and 18, which were as fol- of the railroad, and the occupants of the proplows:

erty on the west side of the railroad could "(17) The court instructs the jury that while have no special occasion to use the street you may believe, from the evidence, that the on the east side and had no direct access roadway such as is contemplated to be made and to it. provided for by the ordinance in question might offer a convenience for public travel and remove

[13] The appellants asked the court to give present obstacles to public travel for the general an instruction to the jury as to the form of public, those are matters that should not be con- their verdict, as follows: sidered by you in determining whether or not the

“The court instructs the jury that if you find property of the several objectors will be present from the evidence that the respective amounts ly specially benefited.

which are assessed against the respective objec**(18) The court instructs the jury that the tors, or any of them, as follows (naming the obevidence of all witnesses relating to special bene-jectors and the amount, respectively, assessed fits to the property of the objectors, whose opin against each of them) is more than the assessed ions as to special benefits are based in whole or property would be specially benefited by the proin part on the element of increased travel along posed improvement, then you are instructed you State street and the increased future growth of should find by your verdict the amount, if any, that part of the city, is excluded from the con- you believe it will be specially benefited by the sideration of the jury, and you are instructed to said proposed improvement, and in such case the not consider such evidence."

form of your verdict may be, to wit: 'We, the They were properly refused. While con

jury, find that the premises of the following venience for public travel and the removal of will be specially benefited, and we further find

named objectors is assessed for more than each obstacles to such travel cannot be the basis that each should be assessed for the amount set of an assessment for benefits where the only opposite each respective name, viz.: Names, advantage derived from them is such as is amount it should be assessed.'” shared with the general public and is not of It was not error to refuse this instruction. special benefit to the property in question, There are no assessments against individuals, yet if the additional convenience, by rea- and the verdict should not be for, certain son of the location of the property or other- amounts set opposite the names of owners, wise, gives a special increased value to the but for certain amounts against the respecproperty which is a benefit over and above tive tracts. The jury were properly instructthat enjoyed by the public generally, then ed as to the form of their verdict by other such convenience may be taken into consid- instructions. eration in assessing benefits.

[14] The appellants asked an instruction [12] Harding and Beckwith, two of the ap- in regard to the view of the premises which pellants, each asked for a peremptory instruc- the jury had during the trial, the last sention to the jury to find that their respective tence of which was as follows: properties were not specially benefited by the “The purpose of permitting you to inspect the proposed improvement. The ground

territory subject to assessment was primarily which these instructions were asked was that acter of the land assessed, and then to hear the

that you might have some knowledge of the char. State Street Park Annex No. 2 (the subdivi- further testimony of witnesses as to how much, sion in which Harding's property was sit- if at all, it will be specially benefited immediate uated), and Security Park addition (the sub-/ ly upon the completion of said improvement." division in which Beckwith's property was The court modified the instruction by situated) did not adjoin State street, and striking out the words, “immediately upon

on

object of the instruction was to advise the strict, under authority conferred upon it by jury as to the purpose of the view and the section 43 of the Conservancy Act of Ohio effect which they should give it. The jury (104 0. L. 13, 35), for the purpose of paying had already been informed in previous in- expenses of organization, for surveys and structions as to the time with reference to plans, and for other incidental expenses which the benefits should be assessed, and it which might be necessary up to the time was therefore not error for the court to elimi. money should be received for the use of said nate this clause from the instruction.

conservancy district from the sale of bonds The judgment of the circuit court of St. or otherwise. Clair county will be reversed and the cause The petition averred that the board of remanded.

directors of the Franklin county conservancy Reversed and remanded.

district, from the date of its organization un

til the 1st day of March, 1916, had incurred (94 Ohio St. 440)

expenses in the sum of $36,018.21, in and STATE ex rel. FRANKLIN COUNTY CON. about the fulfillment of the purposes for

SERVANCY DIST. et al. v. VALENTINE, which the district was created and organCounty Auditor. (No. 15242.)

ized, for surveys, engineering expenses, col(Supreme Court of Ohio. Sept. 2, 1916.)

lection of information and data, and other

expenses incidental to the administration of (Syllabus by the Court.)

said district, all of which expenses were 1. COUNTIES 160 CONSERVANCY Dis- from time to time paid from the general fund TRICTS-FUNDS.

of Franklin county, Ohio, upon the several The levy authorized by section 682843, General Code (section 43 of the

Conservancy orders of the court of common pleas of Act of Ohio, 109 O. L. 13, 35), of three-tenths of Franklin county, Ohio, and entered in the one mill on the assessed valuation of property proceedings for the organization of said conlying within a conservancy district, constitutes the final and sole source of the preliminary fund servancy district; that said district had not defined in section 42 of the Conservancy Act, yet received any money whatever from taxes and is the primary fund from which the general or assessments, bond sales, or otherwise; funds of the county or counties constituting that said relators had demanded that defendsuch district should be reimbursed for expenses paid out of these funds under authority of ant, as auditor of Franklin county, issue his that section.

warrant on the treasurer of Franklin coun[Ed. Note. For other cases, see Counties, ty, payable to said Fred M. Sayre, secretary Cent. Dig. 8 618; Dec. Dig. Om 160.)

and ex officio treasurer of the district, for 2. COUNTIES Om 160 CONSERVANCY Dis- the full amount of $74,149.90, being the full TRICTS-FUNDS.

The board of directors of a conservancy dis- aniount of the collection of said assessment trict has no authority or discretion to delay then in the treasury to the credit of said conthe reimbursement of the general funds of the servancy board; and that said defendant county or counties constituting such district, for had thereupon refused, and still refuses, but money advanced to the preliminary fund, after the receipt of funds by the district from any withholds from the relator, his warrant for source provided by the statute for the raising the said proceeds of said assessment, and re of revenues for the use and purposes of a con- fuses to issue the same. servancy district. [Ed. Note.-For_other cases, see Counties,

To this petition the defendant filed an anCent. Dig. 8 618; Dec. Dig. Om 160.)

swer, admitting all of the allegations of the

petition; and, further answering, averred Original petition by the State, on the re that at the time of said demand by the lation of the Franklin County Conservancy board of directors and the secretary and ex District and others, against H. Sage Valen- officio treasurer of the Franklin county contine, County Auditor. Writ refused.

servancy district this defendant, as county On the 22d day of April, 1916, the state auditor, had reimbursed the general county of Ohio, on relation of the Franklin county fund of Franklin county, Ohio, for the adconservancy district and Fred M. Sayre as vancements made by it in payment of the secretary and ex officio treasurer of the expenses incurred by the directors of the Franklin county conservancy district, filed conservancy district in the fulfillment of the an original petition in this court against H. purposes for which the district was created Sage Valentine, as auditor of Franklin coun- and organized, for surveys, engineering exty, Ohio, praying that a peremptory writ of penses, and other incidental expenses, aggremandamus issue out of this court, directed gating the sum of $36,018.21, and thereupon to the defendant auditor, commanding him to had tendered the said board of the said issue his warrant on the treasurer of Frank- conservancy district and the said Fred M. lin county, Ohio, payable to Fred M. Sayre Sayre, as secretary and ex officio treasurer as secretary and ex officio treasurer of said of the said conservancy district, his warrant conservancy district, for the sum of $74,149.- as auditor of Franklin county, Ohio, for the 90—that suin representing the full amount sum of $38,131.69, being the entire proceeds collected upon an assessment of three-tenths of said collection of three tenths of a mill of a mill levied by the board of directors levied and collected under the resolution of of the Franklin county conservancy dis- | the directors of the conservancy district, less

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