City of Chicago Heights v. Angus

• Decision Date: 22 April 1915
• Docket Number: No. 9999.,9999.
• Citation: 267 Ill. 628,108 N.E. 758
• Parties: CITY OF CHICAGO HEIGHTS v. ANGUS et al.
• Court: Illinois Supreme Court

267 Ill. 628

108 N.E. 758

CITY OF CHICAGO HEIGHTS

v.ANGUS et al.

No. 9999.

Supreme Court of Illinois.

April 22, 1915.

Appeal from City Court of Chicago Heights; Charles H. Bowles, Judge.

Proceeding by the City of Chicago Heights for street improvements by special assessment, wherein George S. Angus and others filed legal objections. Objections overruled, and objectors appeal. Reversed and remanded, with directions.Lindhout & Lindhout, of Chicago Heights, and W. T. Hapeman, of Chicago, for appellants.

Earl E. Smith, of Chicago Heights, for appellee.

CARTER, J.

This was a proceeding in the city court of Chicago Heights for the improvement of a system of streets in that city by a special assessment against the property found to be benefited thereby, under the Local Improvement Act of 1897. Legal objections were filed by appellants, and after a hearing by the court were overruled. Appellants waived further controversy on the record, and this appeal followed.

The estimated cost of the improvement was $72,529.11. The paving was to be made of Portland cement concrete on cinder foundation. The board of local improvements of the city of Chicago Heights adopted a resolution on June 29, 1914, describing the improvement and the streets to be paved. Incorporated in this resolution was an estimate made by the engineer of said board, which provided for the paving only of certain parts of some of the streets that it was provided in the resolution itself should be paved. At the public hearing held July 8, 1914, nine days after the adoption of the resolution, the board of local improvements adjourned the hearing until July 16, 1914. At the adjourned meeting the proceedings were amended, so as to include the expense of drainage in the improvement, and thereupon a second or final resolution was adopted, adhering to the first resolution, except that it also provided for the construction of four-inch tile drains under the curb lines on either side of the street, and the estimate was revised to conform to the improvement as modified.

Counsel for appellants argue that the court erred in overruling the objection urged by them that the first resolution did not comply with the provisions of section 7 of the Local Improvement Act, which provided that the board of local improvements in the first resolution should fix a day and hour for the public consideration of the improvement, ‘which shall not be less than ten days after the adoption of such resolution.’ Hurd's Stat. 1913, p. 414. The preliminary proceedings required by the Local Improvement Act are essential to the passage of a valid improvement ordinance. The estimate of the cost and all the preliminary requirements necessary to be taken before the passage of an improvement ordinance are jurisdictional. Bass v. City of Chicago, 195 Ill. 109, 62 N. E. 913;City of Chicago v. Nodeck, 202 Ill. 257, 67 N. E. 39. The requirement of the statute as to the engineer's estimate of the cost of the improvement is mandatory. Bickerdike v. City of Chicago, 203 Ill. 636, 68 N. E. 161. The provisions of said section 7 requiring a resolution of the board of local improvements containing the engineer's estimate of cost, and also the provision concerning the lapse of time between the adoption of the resolution and the public hearing, are mandatory and jurisdictional. Clarke v. City of Chicago, 185 Ill. 354, 57 N. E. 15. The resolution of the board of local improvements, fixing a day for the public hearing, but failing to specify the hour and place, does not comply with the statute, and it cannot be presumed that the public officials fixed an hour and place in the notices required by law to be made with reference to such hearing. Any attempt by such public officials to supply the omission on the hearing is ineffectual. Lyman v. Town of Cicero, 222 Ill. 379, 78 N. E. 830.

Counsel for appellee argue that it is clear that some of appellants were not injured, as they were present at the adjourned meeting. This court held in the case last cited that the statute must be complied with; that where a municipality attempts to fasten a charge upon the property of an individual the law authorizing the creation of such charge must be followed, irrespective of the question of injury or inconvenience to the property owner resulting from a failure to comply with the law. Proceedings for special assessments under this statute are purely the creation of statute, and jurisdiction can only be acquired in strict conformity therewith. City of Casey v. Cincinnati, Hamilton & Dayton Railway Co., 263 Ill. 352, 105 N. E. 130. It is conceded that ten days did not intervene between the passage of the resolution for this improvement and the public hearing.

Counsel for appellee argue that under the ruling of this court in Village of Homewood v. Granniss, 265 Ill. 135, 106 N. E. 442, the objection that ten days did not intervene between the adoption of the resolution and the public hearing cannot be availed of in this proceeding. In this counsel are in error. That decision was rendered in a collateral proceeding in an application for the sale of the lands for failure to pay an assessment. This objection was properly made in this direct proceeding. City of Chicago v. Lamb, 266 Ill. 134, 107 N. E. 189. The trial court should have sustained the objection to the confirmation judgment because of the failure to comply with this provision of the statute.

Counsel for appellants further argue that there is a substantial variance between the first estimate and the first resolution, in that the estimate omits to provide for the improvement of all or part of certain streets included in the first resolution. The ordinance agrees with the resolution as to the streets and parts of streets to be improved, but differs from the first estimate. The engineer's...