Chicago Union Traction Co. v. City of Chicago

• Decision Date: 24 April 1903
• Citation: 202 Ill. 576,67 N.E. 383
• Parties: CHICAGO UNION TRACTION CO. et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

202 Ill. 576

67 N.E. 383

CHICAGO UNION TRACTION CO. et al.

v.CITY OF CHICAGO. ^*

Supreme Court of Illinois.

April 24, 1903.

Appeal from Cook County Court; Philip S. Post, Judge.

Proceedings by the city of Chicago for the confirmation of a street-paving assessment, in which the Chicago Union Traction Company and others filed objections. Judgment of confirmation, and the objectors appeal. Affirmed.George A. Mason (John A. Rose, of counsel), for appellants.

Edgar Bronson Tolman and Robert Redfield (Charles M. Walker, Corp. Counsel, of counsel), for appellee.

BOGGS, J.

This is an appeal from a judgment confirming a special assessment levied to defray the cost of paving with asphalt South Campbell avenue, in the city of Chicago, from the north line of West Madison street to the south line of West Lake street, a distance of four blocks, under an ordinance adopted on the 23d day of September, 1901, by the city council of said city of Chicago.

On the 27th day of December, 1899, the board of local improvements of said city adopted a resolution providing that the roadway of said South Campbell avenue should be paved with asphalt from the north line of Washington street to the south curb line of West Lake street, in the said city-a distance of two blocks-being two of the blocks along said street ordered to be paved by the ordinance under consideration. This resolution was adhered to at the public meeting, and, while there is no further order concerning it on the records of the board of local improvements, it appears from the records of the city council of the city of Chicago that an ordinance for paving South Campbell avenue from Washington Boulevard to Lake street was submitted to the city council, and that on the 29th day of June, 1900, it was ordered by said city council that action on said ordinance be deferred. On the 9th day of July, 1901, and before any further action had been taken by the city council, the ordinance under which the judgment of confirmation here involved was entered was duly recommended by the board of local improvements to the city council for passage, and was by the latter body passed on September 23, 1901. It is urged that the prior recommendation, action whereon had been deferred by the city council on the 29th day of January, 1900, constituted a bar to further action on the part of the board of local improvements or the city council in the way of providing for the improvement of the two blocks in said South Campbell avenue covered by the said prior recommendation of the board. We do not see the force of this insistence. The latter recommendation, and the ordinance passed in pursuance thereof, provided for the paving of said South Campbell avenue for the two blocks contemplated to be improved by the prior recommendation for an ordinance, and also for the paving of two additional blocks of the said avenue. The ordinance which was adopted authorized the improvement as contemplated in the deferred recommendation, and also a further extension of the same improvement along the avenue, and such deferred recommendation from thenceforth had no function or office to perform. It was properly regarded as having been displaced by the latter recommendation. The passage of the ordinance here involved rendered action by the city council on the deferred recommendation of the board of local improvements wholly unnecessary.

Counsel for the appellants contend that the record of the proceedings before the board of local improvements should contain recitals of fact showing that notices had been given of the time and place of the public hearing, as is required by the provisions of section 7 of the act of 1897 (Laws 1897, p. 104). The record of the board in the case at bar recites that, upon evidence submitted, the board found that notices of said public meeting had been mailed pursuant to statute. The recommendation of the board of local improvements for the passage of the ordinance, by force of the statute, established prima facie that all of the preliminary requirements of the statute had been performed. Laws 1897, § 9, p. 105. One of such requirements was the giving of notices to property owners of the time and place of the public hearing, and the recital in the record made by the board had no tendency whatever to overcome such prima facie evidence that notices as required by the statute had been given, but, on the contrary, served to strengthen such statutory presumption. It is not essential that the record of the board of local improvements should recite the facts relative to the giving of notice to each property holder.

The parties voluntarily agreed during the progress of this proceeding that the issue whether the property of the appellant company had been assessed more than it would be benefited by the proposed improvement should be submitted to and tried by the court, without the intervention of a jury. The position of counsel for the appellant in the hearing before the court on this issue was that the lots, parts of lots, and blocks owned by the appellant company, against which it was asked that assessments be confirmed, were held and owned by the company only for railroad purposes and uses, and that the company could not lawfully apply said property to any other use or purpose than such as is necessary to the operation and maintenance of its railway, and, in this view, insisted the evidence should be confined to the proof of benefit which the improvement would confer to the property for the special use to which it was restricted. The court recognized this position as being correct, and so ruled upon all objections as to the admissibility of evidence. It, however, appeared from the evidence that on lots 1, 2, 3, and 4 in block 2 of Morgan's subdivision, etc., objected for by the appellant company, there was situate a two-story brick building, which was, and for four years prior to the time of the hearing had been, occupied by Bradley Burr as a tenant of the appellant company, was was engaged in the business of manufacturing and repairing wagons on said premises, under a lease executed to said Burr by the appellant company. It further appeared that lots 21 and 22, east half of the same block, at the southwest corner of South Campbell avenue and Washington Boulevard, and the property at the northwest corner of the same thoroughfares, both of which were also objected for by the appellant company, had been leased by the appellant company to the Daemicke Manufacturing Company for a term of five years, and were occupied and used by the said manufacturing company for its private business purposes. It was clearly shown, and, indeed, conceded, that the appellant company was in no wise restricted in the use of lots 39...