tract for the purpose of benefiting and increasing the value of that property. That is a duty they do not owe to the general public. The law does not require that the improvement should benefit any property except the property specially assessed. It is apparent, therefore, that the members of the board of local improvements not only owe a special duty to the owner of the property specially assessed, but that the substitution by them of an improvement of a different and inferior character from that to which such property owner is entitled and for which he has paid, visits an injury upon him of a kind not sustained by the general public. It is urged by appellees that in the case of City of Chicago v. Union Building Ass. supra, this court took the view that the person specially assessed to improve or open a street had, on that account, no other or different right in the street than that possessed by every other citizen,— and this is correct. But it does not meet the difficulty here presented. The question here is, whether appellant is entitled to have the improvement made for which she has paid, and, if so, whether she has a right of action against the board of local improvements which has wrongfully diverted the money raised by special assessment from its proper uses, so that she has not obtained the benefit that the law intends she should obtain. In the Union Building Ass. case, the complainant's property had been specially assessed for the purpose of opening a street in its vicinity, and the street was opened. Thereafter the city proposed to vacate and close the street so opened, and complainant sought an injunction upon the ground, among others, that as it had paid the assessment for opening the street it had a special property right in the street which the city could not disregard. That contention was denied, and it is apparent that af ter the street was once opened the complainant had no greater right therein than any other member of the public, that street not affording ingress and egress to and from complainant's property; but it seems equally clear, after its money had been taken by special assessment for the purpose of opening that street, which would be a benefit to the property specially assessed, complainant would have been specially injured if the street had never been opened in the first instance. Where the improvement has once been made as ordained, the person specially assessed has received all he is specially entitled to receive. He has no special rights thereafter by reason of the fact that he has been specially assessed, so far as that improvement is concerned. We are therefore of the opinion that appellant suffered damages different in kind from those sustained by other members of the community, and that the appellees owed a special duty to her other and different from that owing to the general public. It is then said that the members of the board of local improvements were engaged in the performance of judicial functions in examining the work during its construction and in deciding to accept it upon its completion, and for that reason are exempt from liability. We do not think this the correct view. It was the imperative duty of the board of local improvements to require of the contractor that he construct the identical improvement specified by the ordinance and the contract. That was a duty fixed and certain. The members of the board had no discretion to determine whether they would require him to construct the improvement contracted for or permit him to construct one of an entirely different character. The duty was therefore ministerial. (People v. Bartels, 138 Ill. 322.) This is not a question of whether or not an improvement of the general character of that specified in the ordinance and the contract has been constructed with trifling differences and defects, so that the board of local improvements might in good faith accept the work as that provided for, but it is a case, as was Gage v. People, 200 Ill. 432, of substituting therefor an improvement of an entirely different character and description; and in making such substitution instead of requiring the improvement ordained and contracted for, the members of the board of local improvements violated a duty ministerial in its character. The fact that the appellant could have invoked the powers of a court of equity to restrain any substantial departure from the terms of the ordinance in the performance of the work thereunder, or could obtain a writ of mandamus to compel the city authorities to complete the work as contemplated by the ordinance, (Callister v. Kochersperger, 168 Ill. 334,) or could interpose objections to the application of the county treasurer for judgment against her real estate to satisfy the special assessment, (Gage v. People, 200 Ill. 432,) does not bar her right to bring a personal action against the members of the board of local improvements to recover damages of a kind not sustained by the public in general, occasioned by the malfeasance here charged. The law authorizing the construction of local improvements by special assessments is somewhat tyrannical in its character. The people who pay the money have but little voice as to whether the improvement shall be made, as to the time when or the manner in which it shall be made, or the amount of money that shall be expended in making it. The officers charged with the expenditure of the funds should be held to a strict compliance with the law, and public policy requires that where they are guilty of corruption they should respond in damages to those specially injured by their wrongdoing. The question set out in the opening paragraph of this opinion must be answered in the affirmative. The judgments of the Appellate and circuit courts will be reversed and the cause will be remanded to the circuit court, with directions to overrule the demurrer. Reversed and remanded, with directions. DAVID B. LYMAN, Receiver, v. THE CITY OF CHICAGO et al. Opinion filed June 23, 1904-Rehearing denied October 18, 1904. 1. INJUNCTION—what essential to justify enjoining special assessment. A court of equity will enjoin the collection of a special assessment only when the assessment is void or levied without legal authority or the property assessed is exempt. 2. SAME-assessment not enjoined for departures from the ordinance. Collection of a special assessment will not be enjoined because the improvement is not in conformity with the ordinance, as the remedy in such case is mandamus. 3. SAME objections not available on application for sale are not available on injunction. Objections to a special assessment which would not be available upon an application for judgment of sale cannot be urged upon a bill to enjoin the collection of the assessment. 4. SAME-failure to urge objections on application for sale is a waiver. One who fails to avail himself of his opportunity to urge objections to a special assessment, either at the proceeding to confirm the same or on application for judgment of sale, cannot make such objections the basis for enjoining the collection of the assessment. 5. SAME when collection of assessment will not be enjoined. Collection of a special assessment will not be enjoined for irregularities of procedure leading up to final judgment of confirmation, where the bill fails to show that complainant did not have an adequate remedy at law, by appeal or writ of error, to review the alleged irregular orders. 6. SPECIAL ASSESSMENTS—it is presumed that statutory requirements were complied with. In the absence of allegations to the contrary in a bill to enjoin the collection of a special assessment, it will be presumed that the public officers have performed their duties and that each statutory requirement has been complied with. WRIT OF ERROR to the Superior Court of Cook county; the Hon. JESSE HOLDOM, Judge, presiding. The complainant, David B. Lyman, receiver of the Third National Bank of Chicago, insolvent, filed his bill in the superior court of Cook county for the purpose of setting aside certain special assessment proceedings in the county court of that county, and for an injunction 211 209 214 $531 to restrain the sale of property described in the bill to pay a special assessment. A general demurrer was filed to the bill as amended, and it was sustained by the court and the bill dismissed for want of equity. The case is now brought to this court by writ of error. The bill alleges, in substance, that on March 18, 1900, the board of local improvements of the city of Chicago passed a resolution for the paving of Blue Island avenue from Ashland avenue and West Twenty-second street to Western avenue, at an estimated cost of $79,000; that an ordinance was passed in pursuance of said resolu tion, a petition filed in the county court for the making of an assessment, and on July 23, 1901, the assessment confirmed after a hearing upon certain objections filed thereto; that on April 11, 1902, an order was entered setting aside all judgments of confirmation, and on July 9 following, the assessment originally made, as to the property of plaintiff in error, was again confirmed upon a hearing of objections; that on the 25th of that month an order was entered which attempted to eliminate from the total amount of the assessment an item of $4471.69 cost, and it was ordered that the roll be re-cast so as to effectuate the prorated reduction ordered; that on July 25, 1902, a contract was entered into for said improvement at a bid which was $4000 more than the estimated cost, attached to which contract were certain specifications providing that curb-stones should be set to the established grade, but in violation of the contract no curb-stones were used in any portion of the improvement, but curb walls and retaining walls were used in their place for the entire length of the improvement; that for these and other reasons which were assigned, the said contract and specifications provide for the construction of an improvement other and different from the one provided for in the estimate, and the improvement, as contracted, is other and different from the one provided for in the ordinance, contract and specifications, |
