City of Batavia v. Wiley

• Decision Date: 06 February 1931
• Docket Number: No. 20324.,20324.
• Citation: 342 Ill. 384,174 N.E. 553
• Parties: CITY OF BATAVIA v. WILEY et al.
• Court: Illinois Supreme Court

342 Ill. 384

174 N.E. 553

CITY OF BATAVIA

v.WILEY et al.

No. 20324.

Supreme Court of Illinois.

Dec. 18, 1930.

Rehearing Denied Feb. 6, 1931.

Proceeding by the City of Batavia for paving of certain streets by special assessment, opposed by Robert J. Wiley and others. From a judgment confirming the assessment roll, objectors appeal.

Affirmed.Appeal from Kane County Court; Olney C. Allen, Judge.

George P. Foster and Philip J. McKenna, both of Chicago, for appellants.

Emil J. Benson, City Atty., of Batavia, and Leonard C. Mead, of Geneva (Tolman, Sexton & Chandler, of Chicago, of counsel), for appellee.

STONE, J.

This is an appeal from a judgment of the county court of Kane county overruling legal objections and a judgment of confirmation in a proceeding for the paving of certain streets in the city of Batavia by special assessment. The court on overruling the legal objections fixed a day for the trial of the question of benefits. The objectors waived further controversy, and the court thereupon entered judgment confirming the assessment roll as reported by the commissioner.

The objections urged were: (1) That the ordinance provided for a double improvement; (2) the distribution of the cost was inequitable; (3) property especially benefited was omitted and not assessed; (4) variance between the ordinance and the estimate; and (5) the improvement was unreasonable and unnecessary.

The improvement consists of paving certain streets and placing storm-water sewers in a portion thereof.

The facts on which the claim of a double improvement is based are as follows: Ten blocks in the northern part of the city of Batavia, and nine blocks, most of which lie east and south of this improvement, are included in the district formed. The two parts of the district are not joined except at the northeast corner of the intersection of Church street, which extends east and west, with Prairie street, extending north and south. The west end of the proposed improvement on Church street, which counsel say is the northwesterly terminus of the east part of the district, terminates at the east boundary line of Prairie street where it intersects Church street, while the south end of the improvement on Prairie street, described as the southeasterly terminus of the west portion of the district, terminates at the north line of Church street at its intersection thereof with Prairie street. Church street at this intersection, and west, was already paved. The argument is that this is not a connected improvement, for the reason that it is impossible to drive from the eastern part of the district onto the western part without getting off the improvement while going around the northeast corner of the intersection of Church and Prairie streets. Prairie street bounds the eastern part of the proposed assessment district on the west, and is a paved street to its intersection with Church street. Van Buren street, which is the first street west of Prairie, and which also extends north and south, is likewise paved to its intersection with Church street, so that, with the proposed improvement, the paved portion of Batavia presents a connected series of blocks surrounded by paved streets. Counsel for appellants argue that, unless it can be shown that the property in one portion of this taxing district is benefited by the improvement of the other portion, the proposed improvement is double and will not be permitted.

The extent of an improvement and what shall be included within an improvement district lies within the legislative discretion of the city council, and courts will interfere only to correct a clear abuse of that discretion. City of Pekin v. Grussi, 338 Ill. 196, 170 N. E. 313;City of Peoria v. Cowen, 326 Ill. 616, 158 N. E. 414;Church v. People, 179 Ill. 205, 53 N. E. 554;Davis v. City of Litchfield, 145 Ill. 313, 33 N. E. 888,21 L. R. A. 563. These cases have approved the rule laid down in City of Springfield v. Green, 120 Ill. 269, 11 N. E. 261, that the similarity of the improvement proposed to be made and the situation of the property to be assessed with respect to it afford a more satisfactory test as to whether they might all be embraced in a common scheme as one improvement than their actual connection or physical contact with one another. A number of the objectors testified that the portion of the proposed improvement in one part of the district did not benefit the property in the other portion. It is not contended, and no testimony was offered to show, that the property in one end was assessed for more than it would otherwise have been assessed had the streets in the other portion of the district not been paved. The character of the property affected is, so far as the record shows, approximately the same. It is argued that the property owners of one part of this district, in going from their property to the business section of the city, would not use the improvement on the other part. It might be argued as to practically any paving improvement that in going from one part of it to the business section of the city or to other frequented places other portions of the proposed improvement will not be used. It might, however, in this case with equal logic be said that residents living in the east portion of this district who wish to go into the west portion thereof would find the improvement a convenience to them. In a sense, the improvement of any street is of benefit to any property of the municipality by making the property on the improved street more accessible to those living elsewhere in the city who have business or other reason to visit such property. These matters are not of great weight in considering whether an improvement may be included in a single proceeding. Absolute equality is not attainable, and, unless it be clearly shown that substantial injury results from the inclusion of more than one street in an improvement, or that such a plan is not workable, it would cause unnecessary expense to require each street to be improved by a separate proceeding. The question is, as stated, a legislative one, and the discretion of the city council will not be reviewed, in the absence of clear evidence of abuse thereof. We are of the opinion that abuse of such discretion does not appear in this case, and that the city council was within its legislative rights in including these various blocks within the improvement district.

It is also argued that the fact that stormwater sewers in the east portion with outlets at places different from that in the west portion shows the improvement was not single. Such a fact, however, may merely evidence good engineering, and may occur in the improvement of a single street where the elevation in a central portion of that street prevents a continuous sewer with one outlet. This does not make the improvement double. City of Elmhurst v. Rohmeyer, 297 Ill. 430, 130 N. E. 761; Church v. People, supra.

Counsel argue, however, that the undisputed evidence in this case shows that property in either of the separate portions of the district will not be benefited by the improvement in the other portion, and that under the rule laid down in Davis v. City of Litchfield, supra, unless such benefit is so shown, the improvements cannot be joined. While the objectors testified that their property would receive no benefit from the improvement in the other portion of the district, yet such testimony might be given concerning any improvement covering an extended area. The paving of the streets in this district completed the improvement of a large section of the city, and cannot be said to be two separate improvements. We are of the opinion that it is not shown in this case that the action of the city council in joining these various blocks in this improvement is so unreasonable and oppressive as to render it void. If there is room for reasonable difference of opinion, the action of the city council is final. Presumption always exists in favor of an ordinance passed by competent legal authority. City of Pekin v. Grussi, supra; City of Peoria v. Cowen, supra. Cases cited by counsel for appellants do not hold a contrary view.

It is also argued that the cost of the improvement is inequitably distributed so far as the property of appellants is concerned. This issue is not to be confused with the questions whether property is assessed more than it is benefited or more than its proportionate share, as those are questions of benefit to be tried before a jury. They are not identical questions. Whether the plan of distribution of the cost of the improvement is equitable is a question for the court. Village of Oak Park v. Swigart, 266 Ill. 60, 107 N. E. 158. While no direct testimony appears stating what method was used for the distribution of the assessment, it is evident from a consideration of the various amounts thereof, when compared with the properties involved, that the commissioner fixed the assessment on frontage at $6.60 per foot as to the pavements 25 feet in width and a proportionate increase for the wider pavement. Where corner lots also sided on the improvement, the side footage was assessed at 43 per cent. of the frontage rate to a depth of 165 feet and at the full frontage rate for the balance of the depth if deeper than 165 feet. This apparently was on the theory that the portion of the lot on the side street over 165 feet might be improved as fronting on such side street. Where a corner...