Chicago & N.P.R. Co. v. City of Chicago

• Decision Date: 24 October 1898
• Citation: 174 Ill. 439,51 N.E. 596
• Parties: CHICAGO & N. P. R. CO. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

174 Ill. 439

51 N.E. 596

CHICAGO & N. P. R. CO.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from Cook county court; W. T. Hodson, Judge.

Application by the city of Chicago for the confirmation of a special assessment, to which objections were urged by the Chicago & Northern Pacific Railroad Company. From a judgment overruling the objections and confirming the assessment, the railroad company appeals. Reversed.

K. K. Knapp and Mark Breeden, Jr., for appellant.

Charles S. Thornton, Corp. Counsel, John A. May, and Stuart G. Shepard, for appellee.

On March 15, 1897, the city of Chicago passed an ordinance providing for the curbing, filling, and paving of West Taylor street, in that city, from the west curb line of California avenue to the east curb line of Kedzie avenue, and that the cost of said improvement should be paid by special assessment. The usual proceedings were taken for the levying of the special assessment to pay for said improvement, and objections were urged by the appellant company to the legality of these proceedings. These objections were overruled by the county court, and the assessment was confirmed after verdict by a jury. The present appeal is prosecuted from such judgment of confirmation. West Taylor street runs east and west, and is intersected by California avenue, Francisco street, Sacramento avenue, Albany avenue, and Kedzie avenue, which all run north and south; California avenue being the easternmost of such intersecting avenues, and Kedzie avenue being the westernmost thereof, and the three others above named being between California avenue on the east and Kedzie avenue on the west.

MAGRUDER, J. (after stating the facts).

Section 1 of the ordinance providing for the improvement, by curbing, filling, and paving, of West Taylor street, between California avenue on the east and Kedzie avenue on the west, contains the following provision: ‘Said pavement to be laid to conform to the established grade of said West Taylor street between said points, as shown by an ordinance fixing the grade of said street now on file in the office of the city clerk.’ The provision above quoted is the only provision in said ordinance which in any way refers to or describes the grade of the portion of West Taylor street to be paved. It will be observed that the reference is to ‘an ordinance fixing the grade of said street, now on file in the office of the city clerk.’ Section 19 of article 9 of part 1 of the city and village act provides that, whenever a local improvement is to be made wholly or in part by special assessment, the city council in cities ‘shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement, either by setting forth the same in the ordinance itself, or by reference to maps, plats, plans, profiles or specifications thereof on file in the office of the proper clerk or both.’ 1 Starr & C. Ann. St. (2d Ed.) p. 751. The statute nowhere authorizes a reference to an ordinance as indicating the nature, character, locality, or description of the improvement. It specifically requires that the ordinance providing for the improvement shall either make such specification in the ordinance itself, or shall refer to maps, plats, plans, profiles, or specifications thereof on file in the office of the proper clerk, etc. In City of Carlinville v. McClure, 156 Ill. 492, 41 N. E. 169, we said that the grade of the street must be made to appear, in order to show what amount of excavation and filling respectively are required to be made in the construction of the improvement, and that ‘a reference to an ordinance, monument, instrument, or other fixed thing that locates and witnesses that grade will suffice.’ Washington Ice Co. v. City of Chicago, 147 Ill. 327, 35 N. E. 378;City of Bloomington v. Pollock, 141 Ill. 346, 31 N. E. 146. In the recent case of Chicago & N. P. R. Co. v. City of Chicago, 172 Ill. 66, 49 N. E. 1006,where the ordinance for an improvement provided that the pavement was ‘to be laid to conform to the established grade of Ashland avenue, as shown by an ordinance establishing the grade of said street now of file in the office of the city clerk,’ reference was made to the case of City of Carlinville v. McClure, supra, and the statement made in the latter case, that a reference to an ordinance would suffice, was indorsed and approved of. These decisions, which thus justify a reference to an ordinance, in order to determine the grade of a street, proceed upon the theory that the ordinance referred to shall be as definite and certain in its description of the grade, as though reference was made to a map, plat, plan, profile, or specification. Upon the authority of the two cases of City of Carlinville v. McClure and Chicago & N. P. R. Co. v. City of Chicago, supra, the ordinance here must be regarded as sufficient upon the face of it in its description of the grade of the street.

Upon the trial, however, of the case, the appellant proved that no ordinance was ever passed by the city council of the city of Chicago fixing the grade of West Taylor street along the line of the proposed improvement.Whether it devolved upon the appellee, the city of Chicago, to prove, in the first place, the existence of the ordinance establishing the grade, as referred to in the ordinance providing for the improvement, or whether it was the duty of the appellant to show the absence of such ordinance, it is not necessary here to inquire. It is sufficient to say that the proof showing such absence was made by the appellant. To rebut this proof, appellee introduced in evidence an ordinance, passed by the city of Chicago on June 21, 1897, and approved June 24, 1897, by the mayor. This ordinance provided that the grade of West Taylor street, between Kedzie and California avenues, in Chicago, should be on certain lines; and it recited in its body that it was intended thereby to remove any ambiguity that might exist in the ordinance passed by the city council in January, 1897, being the same ordinance providing for the improvement, and heretofore designated as having been passed on March 15, 1897. The introduction of the ordinance of June 21, 1897, was objected to by the appellant, upon the ground that it was passed subsequently to the passage of the ordinance of January or March, 1897, providing for the improvement. This objection was valid, and should have been sustained. The ordinance providing for the improvement referred to the established grade of West Taylor street as shown by an ordinance fixing such grade then on file in the office of the city clerk; that is to say, on file in the office of the city clerk in January or March, 1897, when the ordinance providing for the pavement of the portion of West Taylor street above indicated was passed. The common council has no power to cure a defect in the original ordinance by creating after its passage a street grade which did not exist at the time of its passage.

Counsel for the city also introduced in evidence three ordinances, the first of which fixed the grades of Kedzie avenue, Albany avenue, Sacramento avenue, and Francisco street at their intersections with West Taylor street, the second of which fixed the grade of certain streets east of California avenue and at their intersections with West Taylor street, and the third of which fixed the grade of California avenue at the intersection of certain streets north and south of West Taylor street. No one of the ordinances thus introduced fixed the grade of California avenue at its intersection with West Taylor street; and no one of said ordinances purported to fix the grade of West Taylor street at any point. In connection with the three ordinances above mentioned, the appellee introduced in evidence an order, passed by the city council on March 23, 1896, subsequently to the passage of the three ordinances last above named, by the terms of which it was ‘ordered, that where grade is established on streets running north and south, or at intersection of streets running east and west, or where grade is established on a street running east and west at intersection of...