City of Chicago v. McCluer

• Decision Date: 06 June 1930
• Docket Number: 19586.,Nos. 19201,s. 19201
• Citation: 339 Ill. 610,171 N.E. 737,339 Ill. 638
• Parties: CITY OF CHICAGO v. McCLUER et al.
• Court: Illinois Supreme Court

339 Ill. 610

339 Ill. 638

171 N.E. 737

CITY OF CHICAGO

v.McCLUER et al.

Nos. 19201, 19586.

Supreme Court of Illinois.

April 17, 1930.

Rehearing Denied June 6, 1930.

Condemnation proceedings by the City of Chicago. From judgments confirming special assessments against and fixing awards for property taken, William B. McCluer and others appeal.

Affirmed.

FARMER, C. J., and DUNN, J., dissenting.

Appeal from Cook County Court; Edmund K. Jarecki and I. L. Weaver, judges.

Lyman, Adams, Bishop & Dupee, Urion, Drucker, Reichmann & Boutell, Bryan Y. Craig, McKinley & Price, Butz, Von Ammon & Marx, and Steinbrecker & Eaton, all of Chicago (Howard F. Bishop, Eugene H. Dupee, and Henry W. Drucker, all of Chicago, of counsel), for appellants.

Samuel A. Ettelson, Corp. Counsel, and Gotthard A. Dahlberg, both of Chicago (Joseph

J. Sullivan, William T. Crilly, Leonard F. Carmody, and Joseph J. Thompson, all of Chicago, of counsel), for appellee.

PER CURIAM.

We have here a consolidation of cases, Nos. 19201 and 19586, involving the validity of proceedings under the Local Improvement Act, and judgments of the county court of Cook county confirming special assessments against and fixing awards to property owners for property taken for improving and widening North La Salle street between Ohio street and North Clark street, in the city of Chicago. The records in both cases were filed in No. 19201 and most of the arguments upon the questions raised in both cases are contained in the briefs filed in that case, the briefs consisting of 300 pages. Most of the errors relied on by appellants are common to both cases, but a few are properly embraced in the argument filed in case No. 19586. After the court overruled legal objections appellants waived further controversy, and judgment was rendered confirming the assessment and for awards to the owners of property taken. Both cases was appealed to this court by property owners.

The total cost of the improvement of La Salle street, which includes its widening fourteen feet on each side of the street, paving, and sidewalk construction, is $6,595,896.

A great number of objections are made by appellants, the principal legal objections being (1) that the records of the board of local improvements are insufficient; (2) that there has been a fraudulent alteration and substitution of records by appellee; (3) that the alleged ordinance was not recommended by the board of local improvements; (4) that there is excess condemnation; (5) that there was no transcription of the resolution prior to the public hearing; (6) that there is no provision for a complete improvement; (7) that the basic ordinance is void; (8) that the trial court was without jurisdiction and its orders void because the court was compensated in part by appellee, one of the parties to the litigation.

In making its prima facie case appellee offered in evidence, among other things, the ordinance passed December 23, 1924, for the widening of La Salle street from Ohio street to Eugenie street, a certified copy of the ordinances passed March 25, 1925, for sidewalks, a certified copy of the ordinance passed March 25, 1925, for paving La Salle street, the petition filed in the case of City of Chicago v. Buzzell, for widening and improving La Salle street from West Washington street to Ohio street, and the petition to condemn in the case at bar. Objections were made to all these, which were overruled.

A contention of appellants, urged by them as objectors below and renewed here, is, that the official records of the board of local improvements, is so far as they affect these proceedings, were fraudulently altered for a twofold purpose: (1) To make it appear that the first resolution required by section 7 of the Local Improvement Act (Cahill's Rev. St. 1929, c. 24, par. 129) was duly transcribed into the records of the board of local improvements; and (2) to make it appear that the ordinances for the widening and collateral improvements were considered and approved by the board of local improvements in the manner required by statute.

From the testimony of Louise Chandler, recording secretary of the board of local improvements of Chicago, whose duty it was to supervise the writing of the minutes of the board and record the minutes of its proceedings, it appears the board record covering the improvements in the present proceeding had been introduced in evidence in a collateral case March 18, 1926, and that such record differed from the documents produced as the records in this case. It appears that for many years it had been the custom of the board to keep the record of its proceedings in two series of numbered volumes, a volume of one series being called ‘Minute Book’ and a volume of the other series being called ‘Book of Resolutions and Estimates.’ The minute books contained the record of the proceedings of the board other than its resolutions and the adoption thereof and its estimates, while the books of resolutions and estimates contained the resolution and estimates of the board, together with the record of their adoption. All of these records were open to public inspection. The so-called ‘Book of Resolutions and Estimates' contains a record of the date of the meetings of the board, the names of the members present, the votes taken on the adoption of resolutions and a copy of the resolution adopted, the record of each day's action on resolutions and estimates being signed by the clerk of the board. In their original form the minutes of the proceedings of the board of October 8, 1924, the date when the first resolution required by section 7 of the Local improvement Act was claimed to have been adopted, of December 19, 1924, and of December23, 1924, at which meetings it is claimed the ordinance here in question was approved and recommended to the city council for passage, and of other meetings, at which resolutions were adopted with reference thereto in the so-called ‘Minute Book’ and no mention of the adoption of any resolution with reference to the improvement, or of any ordinance providing for the improvement in question. Miss Chandler produced one of the volumes of the series of books of resolutions and estimates which contained a copy of the first resolution purporting to have been adopted December 8, 1924, together with the record of its adoption, and testified that the resolution had been duly transcribed therein. This volume also contained records of December 19, 1924, and December 23, 1924, showing the adoption of a resolution approving and recommending to the city council the passage of the ordinance here in question. This volume, with reference to the meeting of the board of local improvements of December 8, 1924, contained the following:

‘Resolution as document No. 12761. At a meeting of the board of local improvements of the city of Chicago, held on the 8th day of December, A. D. 1924, present, Messrs. Rydzewski, Robin, Eckland, Toman and Glackin, members of said board, the following resolution for the making of a local improvement, to-wit, widening north LaSalle street between West Ohio street and Eugenie street, was adopted and said resolution was ordered transcribed into the record of resolutions and estimates, volume 28, as document No. 12761:

‘Be it resolved by the board of local improvements of the city of Chicago, That a local improvement be and the same is hereby originated, to be made by special assessment within the city of Chicago, State of Illinois, as follows, to-wit: That North LaSalle street be widened between West Ohio street and Eugenie street. The lots, blocks, tracts and parcels of land which will be taken for said improvement are as follows: [Then follows a description of the lots, pieces and parcels of land sought to be taken or damaged.]

‘Be it further resolved, That Friday, the 19th day of December, A. D. 1924, at 10:00 o'clock A. M., in the council chamber, city hall, be and the same is hereby fixed as the time and place for the public consideration thereof.

‘[Signed] Edward J. Glackin, Secretary.’

The records in this volume as to the meetings of December 19 and December 23, 1924, were similar in form to the record of the meeting of December 8.

The changes and substitutions in the record here complained of were made by Miss Chandler in the minute book, under authority of a resolution of the board adopted July 29, 1927, in accordance with the recommendation of the attorney for the board that the board take action authorizing such additions to or amplification of the record as may be required to make it speak the truth. In making these changes no deletion was made of any part of the existing record, but they consisted of an amplification thereof, and addition thereto, by the insertion in the minute book, under their respective dates, of a record of the adoption of the first resolution required by section 7 of the Local Improvement Act, and the record of the adoption by the board of the resolution approving the ordinances for the improvements here in question and recommending them for passage by the city council. All of these actions were already shown by the board's records in the books of resolutions and estimates and no change was made which was based solely on the memory of the person making the change. The statute does not purport to prescribe the details as to the keeping of these records, and the requirements of the statute can only be held to be met when the records show not only the text of the purported resolution but also that it was duly adopted. City of Mt. Carmel v. Risley, 263 Ill. 299, 104 N. E. 1035. In People v. Hartquist, 315 Ill. 228, 146 N. E. 140, 141, it was said: ‘Where by law it is made the duty of a public officer to keep a record of proceedings and through oversight or mistake he fails to do so or makes an incorrect record, whenever he discovers, from the data in his office, as such officer, such omission or mistake, it is his duty as such officer to correct the...