Church v. People ex rel. Kochersperger

• Decision Date: 04 April 1899
• Citation: 53 N.E. 554,179 Ill. 205
• Parties: CHURCH et al. v. PEOPLE ex rel. KOCHERSPERGER, County Treasurer.
• Court: Illinois Supreme Court

179 Ill. 205

53 N.E. 554

CHURCH et al.

v.PEOPLE ex rel. KOCHERSPERGER, County Treasurer.

Supreme Court of Illinois.

April 4, 1899.

Appeal from Cook county court; Orrin N. Carter, Judge.

Action by the people, on relation of D. H. Kochersperger, county treasurer, etc., against L. A. Church and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.Strickler & Knight, for appellants.

F. W. Pringle, for appellee.

BOGGS, J.

This is an appeal from a judgment entered in the county court of Cook county against the property of the appellants, on the application of the county collector for a judgment for a delinquent second installment of a special assessment levied by the town of Cicero to pay for a pipe sewer to be laid in South boulevard from Franklin to Park avenue. The avenues intersecting South boulevard, within the limits of the improvement, proceeding eastward, are Franklin, Prairie, Wallar, and Park. The proposed pipe sewer would intersect a brick sewer which had been previously constructed in Prairie avenue, running north and south in said Prairie avenue. The ordinance provided the pipe sewer contemplated to be laid should connect with this brick sewer in Prairie avenue, in such manner as that the contents thereof should be brought from the east and from the west, and discharged therein.

It is first urged that the part of the line of pipe sewers west of Prairie avenue is a separate and distinct improvement from the part east of Prairie avenue, and that the ordinance is void in that it provides for two separate improvements. The extent of an improvement, and what shall be included within it, rests in the legislative discretion of the city council, and the courts will interfere only to correct a clear abuse of the discretion. Davis v. City of Litchfield, 145 Ill. 313, 33 N. E. 888. If it appears an ordinance provides for two separate and distinct improvements, the making of one of which could not reasonably be said to benefit property situated upon the other, the combination of the improvements would be regarded as a clear abuse of such discretion. Where the pipe sewer proposed to be constructed by the ordinance here involved should have its outlet was necessarily to be determined by the city council, and that involved consideration of the conformation of the surface of the ground and the location of existing sewers. If the ordinance under consideration had provided the pipe sewers should be so laid as to discharge their contents at either proposed end thereof, no reasonable ground would exist to justify a contention the whole line of the pipe sewers was not a single improvement. The mere fact it was deemed best to order the pipe sewers to be so laid as that the contents thereof would be discharged at an intermediate point did not convert the line of pipe sewers into separate lines. The improvement contemplated but a single line of pipe sewers in South boulevard, and it was entirely within the power of the city council to provide such outlet or outlets as the conformation of the surface of the ground, the location of the existing means of drainage, and perhaps other circumstances, should dictate. The principle involved is declared in City of Springfield v. Green, ...