Brewster v. City of Peru

• Decision Date: 17 June 1899
• Citation: 180 Ill. 124,54 N.E. 233
• Parties: BREWSTER et al. v. CITY OF PERU.
• Court: Illinois Supreme Court

180 Ill. 124

54 N.E. 233

BREWSTER et al.

v.CITY OF PERU.

Supreme Court of Illinois.

June 17, 1899.

Appeal from Lasalle county court; Henry W. Johnson, Judge.

Proceeding by the city of Peru, seeking confirmation of an assessment roll, for a special tax for a street improvement. Benjamin D. Brewster and others filed objections to the confirmation of the assessment, which were overruled, and a judgment was entered confirming the assessment roll, from which they appeal. Reversed.

This is a proceeding by special taxation for the improvement by curbing and macadamizing of Marion street, and certain parts of Putnam, Second, and Peoria streets, in the city of Peru in Lasalle county. The improvement was to be of the whole of Marion street, and of Putnam street from its southern line to Second street, and of Second street from West street to Peoria street, and of ‘Peoria street from the north line of the intersection of Second and Peoria streets to the northern limits of the city of Peru.’ Appellants are the owners of property sought to be specially taxed for the improvement, and filed objections in the county court to the confirmation of the assessment. These objections were ocerruled by the court, and judgment was entered, approving and confirming the assessment roll. The present appeal is prosecuted from such judgment of confirmation by the county court of Lasalle county.

Fred T. Beers, for appellants.

Charles W. Helmig (Lincoln & Stead, of counsel), for appellee.

MAGRUDER, J.

Many objections were filed to the confirmation of the assessment; but we deem it necessary to notice only one of them. The first objection made by appellants in the court below was that the nature, character, description, and extent of the alleged improvements, for which the assessment was extended or levied, were not specified in the ordinance. The ordinance was passed on June 29, 1897. Section 1 of the ordinance provides that ‘the curb shall be constructed on the ground in alternate sections, and the top edge shall conform to the line and grade of said streets, as established by an ordinance of the city of Peru, passed by the city council of the city of Peru on the 27th day of May, A. D. 1897, and by an ordinance of the city of Peru, passed by the city council of said city on the 29th day of June, A. D. 1897.’ Said section 1 in another part thereof also provides that ‘the center of said roadway of said streets, between the points above designated, as aforesaid, when completed, shall conform to the established grade of said streets.’

Upon the trial in the court below, the appellee, the city of Peru, introduced in evidence the grade ordinance of June 29, 1897, referred to in said section 1 of the ordinance, upon which this proceeding is based. The appellee, however, did not introduce in evidence the ordinance of May 27, 1897, referred to in said section 1. A plat or map of the city of Peru was introduced, which shows that Main street in the southern portion of the city runs east and west, and parallel with the streets numbered from First to Eleventh, which also run east and west, and are parallel with each other. The plat shows that Peoria street runs from Main street on the south to the northern limits of the city. From Eleventh street northward Peoria street runs through an 80-acre tract, known as the ‘Brewster Track,’ which has never been subdivided into lots and blocks, and is acre or farm property. The grade ordinance of June 29, 1897, introduced in evidence by appellee, determines the grade of the route of Peoria street from Main street to Third street, and also determines the grade of the route of Peoria street from the north line of Eleventh street north to the city limits. But said ordinance does not determine the grade of the route of Peoria street from Third street north to Eleventh street. The distance on Peoria street from Third street on the south to Eleventh street on the north is eight blocks, or nearly one-half mile. It was not shown that any grade whatever was established for this portion of Peoria street located between Third street and Eleventh street. It is true that it is not necessary to set out a grade ordinance in the improvement ordinance. It is sufficient if the ordinance for the improvement specifically refers to an established street grade. Cramer v. City of Charleston, 176 Ill. 507, 52 N. E. 73;Lehmers v. City of Chicago, 178 Ill. 530, 53 N. E. 394;Claflin v. City of Chicago, 178 Ill. 549, 53 N. E. 339. But where the ordinance for the improvement refers, in describing the improvement, to an ordinance establishing the grade, as was done in this case, or to the established grade of a street generally, it must appear upon the trial that an ordinance was passed establishing the grade. It was said in Claflin v. City of Chicago, supra: ‘If it should be shown on the hearing that there was no ordinance establishing a grade, it would be a good defense to an application for judgment.’ It was held to the same effect in Chicago & N. P. R. Co. v. City of Chicago, 174 Ill. 439, 51 N. E. 596.

In Chicago & N. P. R. Co. v. City of Chicago, supra, the proof, showing the absence of an ordinance establishing the grade, was made by the objectors to the confirmation of the assessment; and, inasmuch as such proof was...