City of Chicago v. Law

• Decision Date: 31 March 1893
• Citation: 144 Ill. 569,33 N.E. 855
• Parties: CITY OF CHICAGO v. LAW et al.
• Court: Illinois Supreme Court

144 Ill. 569

33 N.E. 855

CITY OF CHICAGO

v.LAW et al.¹

Supreme Court of Illinois.

March 31, 1893.

Appeal from circuit court, Cook county; S. P. McConnell, Judge.

Petition by the city of Chicago against Robert Law and others to condemn land. The petition was dismissed on defendants' motion. The city appeals. Affirmed.C. C. Gilbert and J. S. Miller, for appellant.

Williams, Holt & Wheeler, Underwood & Butler, Hutchinson & Luff, William M. Johnston, Stephen D. Swisher, Mason Bros., Osborn & Lynde, Wilson, Moore & Mcllvaine, and Matz & Fisher, for appellees.

CRAIG, J.

On the 18th of July, 1890, the city of Chicago filed its petition in the circuit court of Cook county for the purpose of widening the south branch of the Chicago river north and south of West Eighteenth street, by condemning therefor certain lots and parceis of ground lying and being in Canal Trustees' subdivision of W. 1/2 of section 21, township 39 N., range 14 E. of the third P. M., and so much of the N. E. 1/4 as lies west of the south branch of Chicago river. It appears from the record that a jury awarded some $82,000 for the land condemned; that commissioners were appointed to levy the special assessment; and that they have returned an assessment roll into court. This roll assesses less than $1,000 upon the city to be paid by general taxation, and spreads the remaining $81,000 exclusively upon property fronting on the river and its slips, beginning a few blocks east of Eighteenth street, and running west to the end of navigable water on both forks of the south branch. The appellees, property owners, whose property was assessed, appeared, and filed objections to the confirmation of the assessment, and entered a motion to dismiss the petition, upon the ground that the petitioner had no power to make the improvement, and the court is without jurisdiction to confirm the assessment therefor. In the argument filed by appellees, their position in support of the motion is stated as follows: (1) That the legislature of Illinois has not granted to the city of Chicago the power to widen the Chicago river by special assessment, and that the proposed widening is not a ‘local improvement,’ within the meaning of the special assessment act, but is made for the benefit of navigation and of commerce generally, and the cost thereof ought to be borne by the community at large, and not solely by the owners of river frontage. (2) That congress has assumed exclusive jurisdiction over the Chicago river, and that, even if the state had granted to the city the power to widen the river by special assessment, the national government has declared it unlawful to excavate or fill, or in any manner to alter or modify its course, location, condition, or capacity until the plans for the proposed work have been submitted to the secretary of war and have been by him approved; that the city has no power to make the improvement except upon a condition precedent with which it has not complied. (3) That, since the act which conferred upon the city such powers as it has, the legislature has delegated the control of this stream and all works done upon it to the sanitary district of Chicago, which has by appropriate action assumed jurisdiction over the Chicago river and the south branch thereof, for the purpose of widening and improving the same to a capacity of 300,000 cubic feet per minute, and that this jurisdiction is now exclusive.

On the hearing of the motion, it was admitted by the parties that the Chicago river, from its mouth, where it flows into Lake Michigan, to and at the point where said improvement is proved to be made, and both north and south thereof, is, and was when said ordinance was passed, a navigable stream, and that the United States government or the authorities thereof have never in any way improved or expended any money upon the improvement of the Chicago river except near the mouth thereof and two miles upward from the improvement in question herein, and that the city of Chicago has at different times, from year to year, expended divers large sums of money in the improvement of said river, and that said river has been greatly enlarged by the city of Chicago for the convenience of its commerce; and it was further admitted, for the purpose of this case only, that no application has been made by or on behalf of the city of Chicago to the secretary of war of the United States government to approve of or consent to the proposed improvement, or any plans or specifications therefor, and that no such approval or consent has been made or given. It was further admitted by the parties hereto that the sanitary district of Chicago was duly organized according to law, and that it has properly and legally passed the following resolutions: ‘Resolutions of the Sanitary according to law, and that it had 1891. Resolved, that this board hereby orders that the sanitary district of Chicago do forthwith enter upon, use, widen, deepen, and improve the Chicago river from its mouth, at Lake Michigan,to the south branch thereof, and also the south branch thereof, together with the south and west forks thereof, so as to make the same a proper and sufficient supply channel for the main channel heretofore surveyed from the Chicago river to Joliet; and, further, that the acting chief engineer be, and he is hereby, directed immediately to investigate and report upon the capacity of said river and its south branch and forks for that purpose, and also as to any changes that should be made therein; and that a copy of this resolution, certified by the clerk, be forthwith transmitted to the mayor and common council of the city of Chicago and the secretary of war of the United States,’-which resolution was by the said objectors offered in evidence. Section 1 of article 9 of the act of 1872, entitled ‘Cities, villages, and towns,’ provides that the corporate authorities of cities and villages shall have power ‘to make local improvements by special assessment or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.’ Paragraph 30, § 1, art. 5, Act 1872, supra, provides that the common council of cities and villages shall have power to deepen, widen, dock, cover, wall, alter, or change the channel of water courses. Under these sections of the statute, it is claimed that the city of Chicago had the power to make the special assessment in question for the purpose of raising money to pay the cost of widening the south branch of the Chicago river. Article 5, or rather the first section of the article, contains 96 distinct paragraphs,...