City of Chicago v. Green

• Decision Date: 19 February 1909
• Citation: 238 Ill. 258,87 N.E. 417
• Parties: CITY OF CHICAGO v. GREEN.
• Court: Illinois Supreme Court

238 Ill. 258

87 N.E. 417

CITY OF CHICAGO

v.GREEN.

Supreme Court of Illinois.

Feb. 19, 1909.

Appeal from Cook County Court; W. L. Pond, Judge.

Proceedings by the City of Chicago for a special sewer assessment to which H. H. Green filed objections. Objections were overruled, and from an order in favor of petitioner on the question of benefits objector appeals. Reversed and remanded.Edwin L. Harpham, Charles W. Greenfield, and F. W. Becker, for appellant.

George A. Mason and Frank Johnston, Jr. (Edward J. Brundage, Corp. Counsel, of counsel), for appellee.

CARTER, J.

The city of Chicago instituted these proceedings under the local improvment act of 1897 (Hurd's Rev. St. 1908, c. 24, §§ 606-615) to construct by special assessment a brick sewer having a concrete bulkhead at its outfall, and extending from a point on the southerly line of the main drainage canal of the sanitary district of Chicago southeasterly a short distance across the right of way of the sanitary district and thence south in Kedzie avenue to West Severty-First street. The diameter of the sewer is 9 feet at the mouth and decreases gradually to 6 1/2 feet. Its total cost is estimated at $370,000. It passes, near its mouth, under the Illinois and Michigan Canal by means of a concrete inverted siphon, having as supports concrete bulkheads constructed adjacent to the waters of the canal on each side. The assessment is divided into 10 installments; the aggregate total of appellant's being $14,256. The drainage district is about six miles in length, the southern boundary being Eighty-Seventh street, and it extends east and west for most of the way from Sacramento avenue to Central avenue, a distance of about three-quarters of a mile. On the hearing of legal objections before the county court of Cook county, the assessment on certain properties south of Seventy-First street, not including the property objected for, was reduced, and the amount of reduction was added to the public benefits charged to the city of Chicago. All the legal objections were thereupon overruled. A jury trial as to benefits appears to have been waived and the matters submitted to the trial judge, who found for the petitioner on the question of benefits and entered an order accordingly. This appeal followed.

The first and one of the chief contentions of the appellant is that the proposed sewer is an ‘adjunct’ or ‘addition’ to the main channel of the sanitary district within the meaning of the sanitary district act of 1889 (Hurd's Rev. St. 1908, p. 375), and that, therefore, the board of trustees of the said district are the corporate authorities authorized by law to levy the assessment and construct this improvement. Appellant relies upon the cases of Rich v. City of Chicago, 152 Ill. 18, 38 N. E. 255;Gage v. City of Chicago, 225 Ill. 218, 80 N. E. 127;MacChesney v. City of Chicago, 227 Ill. 215, 81 N. E. 410;Gage v. Village of Wilmette, 230 Ill. 428, 82 N. E. 656;Northwestern University v. Village of Wilmette, 230 Ill. 80, 82 N. E. 615. The Rich Case, supra, merely held as to that point, in substance, that, as the work of the proposed sanitary district under said act of 1889 was not completed, the law could not, in any event, apply at that time. The other cases cited above have followed the ruling in the Rich Case, and for the same reason.

It is contended by appellant that this record shows that the main channel of the sanitary district has been completed and opened for use, and that, therefore, it is a fair construction of the sanitary district act that this sewer is an ‘adjunct’ and must be built by said sanitary district. It is quite evident from this record, as contended by appellee, that much of the work of the sanitary district, under the act, is still incomplete. But conceding, for the sake of the argument, that the main channel being completed from the Chicago river to Lockport, so that the waters of Lake Michigan have been for several years flowing through the drainage canal, the Des Plaines and Illinois rivers into the Mississippi, therefore the drainage system is completed, as that question was considered and referred to in the Rich Case, supra, must the conclusion contended for by appellant prevail? A consideration of the various provisions of the sanitary district act of 1889 leads, it seems, irresistibly to the conclusion that this act was passed to furnish a common outlet for the sewage of the incorporated municipalities within the limits of the district, recognizing the existence of these municipalities without seeking to curtail their powers except in the one matter of a common outlet for their drainage and sewage. This court in Wilson v. Board of Trustees, 133 Ill. 443, 27 N. E. 203, and in People v. Nelson, 133 Ill. 565, 27 N. E. 217, considered and discussed various features of this act. It is manifest from a reading of those decisions that the court at that time did not consider that the act was passed for the purpose of taking charge of, controlling, and constructing sewers by special assessments, for the purpose of local drainage, but rather to furnish a common outlet for all the sewers within the boundaries of the sanitary district. This court in People v. Nelson, supra, speaking by Mr. Justice Bailey, said (page 580 of 133 Ill.,page 220 of 27 N. E.): ‘The general sanitary scheme adopted by the act consists of creating certain districts comprising certain areas of contiguous territory, and empowering such districts to construct and maintain a common outlet for the drainage and sewage of their respective territories. That scheme is indicated in the first section of the act, as follows: ‘That whenever any area of contiguaous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district under this act.’ Of course, it must be conceded, both as a historical fact and as a fact abundantly shown by the terms of the act itself, that this scheme was formulated mainly, if not exclusively, with reference to the sanitary condition and needs of the city of Chicago and its environs, and we cannot give proper construction to the act without taking into account the peculiar situation of the territory which the proposed sanitary district of Chicago was intended to embrace. Chicago is a city of probably 1,000,000 inhabitants or more, and is bordered on the east by Lake Michigan; that lake being the source of its water supply. A few miles west of Chicago, and running in a north and south direction, is the Des Plaines river, and at a point opposite the southerly part of the city the said river turns toward the southwest and runs in that direction to the city of Joliet below which it is known as the Illinois river. The territory between Lake Michigan and the Des Plaines river, and along the course of that river to Joliet, is nearly level, none of it being more than a few feet above the level of the lake, while at Joliet the general surface is quite a number of feet below the level of the lake. The object of the system of drainage proposed by said act is to prevent the drainage and sewage of the city and its environs being carried into Lake Michigan, thereby contaminating the waters of the lake. This result is to be reached by cutting a channel which will give an outlet for the drainage and sewage of the city in the direction of the Des Plaines and Illinois rivers, and which will also cause a large flow of water from the lake, through the proposed artificial channel, into those rivers for the purpose of diluting the sewage and rendering it innocuous to the people living along the course of those streams.'

It was argued in both of these cases that the work in question was a local improvement, and that, therefore, under the provisions of the Constitution, especially section 9 of article 9, no municipality, except cities, towns, and villages, could make such an improvement. This court in discussing that question in Wilson v. Board of Trustees, supra, speaking through Mr. Justice Scholfield, said (page 469 of 133 Ill.,page 207 of 27 N. E.): ‘It would be a sufficient answer to this to say that it is not shown, by anything in the record before us, that the improvement here contemplated is a ‘local improvement’ within the meaning of those words as used in this clause. In a general sense all improvemnts within a municipality are local-that is, they do not extend to all parts of the state; they have a locality; are nearer to some persons and property than to others. But it is evident that is not what is here meant by ‘local improvements'; for, if it were, it would have been more natural and lucid to have said ‘improvements' without other qualification, or, simply, ‘municipal improvements.’ We are to give all the words employed some meaning, if we can, and so we must consider ‘local improvements' in connection with ‘special assessment,’ for the local improvement contemplated is one that can be made by special assessment, if only the corporate authorities shall elect to make it in that way. * * * But all improvements within a municipality are not by reason of their locality a special benefit to some real property beyond their benefits to real property generally throughout the municipality, but many times the result is directly the reverse-that of a positive injury, in the loss of values. In such cases it is clear the improvement could not be made by special assessment, and it is not to be presumed that a Constitition would contain the absurdity of prohibiting the doing of an impossibility, as, for instance, that the General Assembly should not authorize any but the corporate authorities of cities, towns, and villages to make local improvements by special assessment, when such improvements are of that character that they...