City of Chicago v. Blair

• Decision Date: 31 March 1894
• Citation: 149 Ill. 310,36 N.E. 829
• Parties: CITY OF CHICAGO v. BLAIR et al.
• Court: Illinois Supreme Court

149 Ill. 310

36 N.E. 829

CITY OF CHICAGO

v.BLAIR et al.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from Cook county court; Frank Scales, Judge.

Petition by the city of Chicago to confirm a special assessment. William Blair and others filed objections. The objections were sustained, and the petition dismissed. Petitioner appeals. Affirmed.

Adolf Kraus, Corp. Counsel, M. W. Robinson, and F. W. C. Hayes, for appellant.

Wilson, Moore & McIlvaine, George H. Taylor, Young, Makeel & Bradley, Montgomery & Montgomery, Runyan & Runyan, Walker, Judd & Hawley, Winston & Meagher, Wolseley & Heath, C. S. Darrow, A. W. Pulver, W. J. Hynes, Mason Bros., J. R. Geary, W. S. Hefferan, D. H. Horne, J. F. Clare, A. Hertig, Osborne Bros. & Burgett, W. A. Phelps, Bayley & Waldo, J. A. Peterson, W. T. Underwood, A. H. Tyrrell, Rich & Stone, Otis & Graves, R. B. Twiss, Pedrick, Dawson & Clarke, N. N. Cronholm, H. W. Brandt, Felsenthal, D'Ancona & Ringer, James Maher, C. M. Hardy, C. H. Mitchell, C. M. Osborne, Ripley & Alling, Tatham & Webster, E. U. Fliehman, F. B. Packard, Kirk Hawes, Cohrs & Green, and C. E. & D. G. Anthony for appellees.

This was a proceeding to confirm a special assessment upon the property of appellee and others for local improvement of the street upon which the property was situated. The objectors appeared in the county court and filed objections, which, among the questions raised, deny the power of the city to make the assessment for the purposes designated in the ordinance. The ordinance provided that the roadway of certain named streets, between specified points thereon, should be sprinkled with water four times a day during the period commencing April 15, 1893, and ending November 15, 1893; the first sprinkling each day to be completed before 9 o'clock a. m., the second between 9 a. m. and 12 m., the third between 12 m. and 3:30 p. m., and the fourth between 3:30 and 6 p. m.,-there being at least an hour's time between the sprinklings of any street. The ordinance then provides for the manner of sprinkling, and that it shall be at the rate of at least one gallon for every 40 square feet of roadway; the work to be done under the superintendent of public works. Section 2 of the ordinance provides that said improvement shall be paid for by special assessment upon property benefited, in accordance with article 9 of the cities and villages act. Section 3 appoints commissioners to make an estimate of the cost of said improvement, including labor, materials, and all other expenses attending the same, and the cost of making and levying the assessment, etc. The commissioners appointed returned an estimate as follows: ‘Cost of the improvement, $12,000.80; inspection and superintending, $360; cost of making and levying assessment, $370; total cost, $12,730.80,’-which was approved by the city council. A petition was filed in the county court for the appointment of commissioners to extend the assessment upon property benefited. Commissioners were appointed, who returned an assessment roll, apportioning said cost upon property by them deemed specially benefited by the proposed improvement. On motion of objectors the assessment was annulled by order of the court, and the petition dismissed. The city appeals.SHOPE, J. (after stating the facts).

The question presented by this record is whether the municipal authorities in cities and villages organized under the general law for the incorporation thereof have power to provide that the cost of sprinkling the streets of the city or village shall be paid by special assessment. In other words, is the sprinkling of streets a local improvement within the meaning of the statute authorizing cities and villages to make local improvements by special assessment? Section 9, art. 9, of the constitution authorizes the general assembly to vest corporate authorities of cities, towns, and villages with power to make local improvements by special assessment or by special taxation of contiguous property, or otherwise; and, in pursuance thereof, the legislature has vested such authorities ‘with power to make local improvements by special assessment, or special taxation, or both, of contiguous property, on general taxation or otherwise as they shall by ordinance prescribe.’

It is contended that under this statute the corporate authorities alone are to determine what is and is not a local improvement, and, they having determined in this case that the sprinkling of the streets designated in the ordinance was a local improvement, their decision is final, and not the subject of review. The case of Louisville & N. R. Co. v. City of East St. Louis, 134 Ill. 656, 25 N. E. 962, is cited in support of this contention. There the city passed an ordinance for the construction of a viaduct in one of the streets of the city over the tracks of the railway, and also spanning Cahokia creek. The objection was that the building of the viaduct in the street was ‘not a local improvement within the meaning of the statute authorizing the levy of special assessments;’ and it was held that, the city being empowered ‘to lay out, establish, open, alter, widen, extend, grade, pave and otherwise improve streets,’ and ‘to construct and keep in repair bridges, viaducts and tunnels, and to regulate the use thereof’ (paragraphs 7-28, § 1, art. 5, c. 24, Rev. St.), the city council had power to determine that the construction of the viaduct in the street was a local improvement, and to order the same to be paid for by special assessment. The language quoted by counsel was used in respect of the facts of that case, and, as applied thereto, was entirely accurate, but the decision cannot be regarded as authority for the contention in this case. The power of the city council to declare what shall be local improvements is necessarily implied from the power to make the same in the mode and by the means prescribed. But this implication can arise only in respect of improvements they are authorized to make by special assessment or special taxation. So long as the attempted exercise of the power relates to such public work as was within the legislative contemplation when giving the authority to the municipality, a reasonable exercise of the implied power in declaring such work a local improvement will be sustained (City of Bloomington v. Chicago & A. R. Co., 134 Ill. 451, 26 N. E. 366); and in such cases the method of construction, the materials used, and whether it shall be treated as a local improvement, to be paid for in whole or in part by special assessment or special taxation, or is to be paid for out of the general revenues of the city or village, are matters resting within the legislative discretion of the municipal authorities (Fagan v. City of Chicago, 84 Ill. 227;Louisville & N. R. Co. v. City of East St. Louis, 134 Ill. 656, 25 N. E. 962). Improvements authorized to be made by this species of taxation are public improvements (Cooley, Tax'n, 67-416; Burroughs, Tax'n 10 et seq.; Davis v. City of Litchfield, 145 Ill. 327, 33 N. E. 888); and an attempt by the municipal authority to declare a purely private work a local improvement within the meaning of the statute would be ultra vires, and the courts would be compelled to so declare. A local improvement within the meaning of the statute is a public improvement which, by reason of its being confined to a locality, enhances the value of adjacent property as distinguished from benefits diffused by it throughout the municipality. The only basis upon which either special assessment or special taxation can be sustained is that from the proposed local improvement the...