Betts v. City of Naperville

• Decision Date: 21 February 1905
• Citation: 214 Ill. 380,73 N.E. 752
• Parties: BETTS et al. v. CITY OF NAPERVILLE.
• Court: Illinois Supreme Court

214 Ill. 380

73 N.E. 752

BETTS et al.

v.CITY OF NAPERVILLE. ^*

Supreme Court of Illinois.

Feb. 21, 1905.

Error to Du Page County Court; L. C. Ruth, Judge.

Petition by the city of Naperville for a special assessment for the construction of waterworks, to which Thomas Betts and others filed objections. From an order overruling such objections and confirming an assessment, objectors bring error. Reversed.

Magruder, J., dissenting.

Charles Wheaton, for plaintiffs in error.

George W. Brown and H. H. Goodrich, for defendant in error.

CARTWRIGHT, J.

The city of Naperville, defendant in error, filed in the county court of Du Page county a petition for a special assessment to pay the cost of constructing a connected system of cast-iron water pipes, with hydrants and valves, in the streets of said city. Plaintiffs in error, owners of property assessed, filed objections to the ordinance and assessment, to be heard by the court, and when those objections were overruled they waived further controversy as to the question of benefits before a jury, and the assessment was confirmed. The writ of error in this case was sued out to review the proceeding.

It is said the ordinance does not connect the pipe system with the water-supply works, but that is a misapprehension.

The objection chiefly relied upon is that William S. Shields, the commissioner who spread the assessment, was not competent to act in that capacity, for the reason that he was pecuniarily interested in the assessment. The objectors introduced in evidence a contract between the petitioner and Shields by which he agreed to furnish all necessary materials, labor, and engineering assistance, and to design a waterworks system for the city; to act as engineer in all matters pertaining to the construction of said waterworks; to make all surveys, plats, maps, drawings, reports, estimates, and specifications; to pepare and furnish ordinances and other papers usually required of engineers in connection with the passage of ordinances and the spreading and confirmation of assessments; to furnish a map showing property affected, and furnish blanks, and act as commissioner or assist a commissioner in spreading assessments; to furnish plans and specifications, with blank forms for bidders, advertisements, and contracts; and to provide experienced engineers and inspectors to oversee the work. The petitioner agreed, as compensation, to pay him, when all contracts for the construction of the waterworks should be wholly carried out and completed, and the work be adopted by petitioner, a sum equal to 5 per cent. of the total cost or amount of all contract work, less $250 for maps furnished by the city. Partial payments of $250 each were to be made-the first on the completion of the plans and specifications for the pumping station, machinery, tower, and reservoir, and awarding contracts therefore, and another upon the completion of the design for the water-pipe system, with map and specifications, the preparation of ordinances and special assessment rolls, and when the assessment rolls should be filed in the county court. Afterward monthly estimates were to be allowed during the construction of the work, and final payment upon completion of the work.

This contract is the same one which was set out, in substance, in the case of Murr v. City of Naperville, 210 Ill. 371, 71 N. E. 380,relating to the same assessment. In that case it was considered that Shields was disqualified, by interest, to act as commissioner in spreading the assessment, for the reason that, the higher he made the estimate of cost, the higher would be the contract bids for the work, because the bids would necessarily be about the amount of the estimate. While that decision is conclusive as to the property then involved, we are satisfied that the conclusion was incorrect. The assessment was to be based upon the estimated cost of the improvement. Nothing that a commissioner could do in spreading the assessment could in any manner increase that estimate, and therefore, in determining that Shields was interested pecuniarily, it must first be assumed that he made the estimate of cost which was the measure of the assessment. That could not be so, because, under sections 7 and 10 of the local improvement act, the assessment was required to be made by the president of the board of local improvements over his signature. Laws 1897, pp. 104, 105. The estimate was made by Alvin Scott, Jr., mayor and president of the board of local improvements and over his signature. It was the act of the president of the board of local improvements, presented to and adopted by that board and by the city council, whoever may have furnished the data for it. But if the estimate had been made by Shields, he was not to be compensated from the assessment, or on the baiss of either the estimate or the assessment. By the contract he was to be paid from the general funds of the city 5 per cent. of the actual cost of the construction of the works, and any estimate he might make of the cost of construction would not affect the actual cost. He was to design a system of waterworks for the city, a part of which was the pumping station, tower, and reservoir, not included in the assessment, and the other part was a system of water pipes, for which the assessment was levied. It is true that the interest of Shields would be to design and present to the board of local improvements an expensive system, for the reason that the more complete, thorough, and better the system, the greater the cost of construction would be, and the greater his compensation. He could, perhaps, have some influence with the board of local improvements or the city council with respect to the character of the work or the system to be adopted, but all that he could say or do would be merely advisory, and the system must meet the approval of the board and council. It certainly cannot be said that he was not competent to act as commissioner in spreading the assessment for the reason that the board of local improvements and council might perhaps have adopted, at his suggestion, a better and...