City of Lincoln v. Chicago & A.R. Co.

• Decision Date: 21 February 1914
• Citation: 262 Ill. 11,104 N.E. 277
• Court: Illinois Supreme Court
• Parties: CITY OF LINCOLN v. CHICAGO & A. R. CO.

262 Ill. 11

104 N.E. 277

CITY OF LINCOLN

v.CHICAGO & A. R. CO.

Supreme Court of Illinois.

Feb. 21, 1914.

Appeal from Logan County Court; Charles J. Gelbach, Judge.

Proceeding by the City of Lincoln against the Chicago & Alton Railroad Company to levy an assessment. From a judgment of confirmation, defendant appeals. Reversed and remanded.W. A. Covey, of Mason City (Silas H. Strawn, of Chicago, of counsel), for appellant.

Uri Kissinger, City Atty., of Lincoln (Humphrey & Anderson, of Lincoln, of counsel), for appellee.

CARTER, J.

This was a proceeding brought by the city of Lincoln in the county court of Logan county in March, 1913, to levy a special assessment for paving with brick Chicago street, in that city, between Clinton and Pekin streets-about three blocks. Legal objections were filed by appellant and overruled. Trial was then had before a jury on the question of benefits, and judgment was entered on the verdict confirming the assessment. This appeal followed.

The main line of the appellant company passes through the city of Lincoln in a northeasterly direction, just westerly of the proposed improvement. The property of appellant assessed is the 100-foot right of way proper of said railway adjacent to the three blocks and a strip of land 80 feet in width, being all the land between said right of way and the street improvement in question. The 80-foot strip, as well as the right of way, is crossed by streets, dividing said strip into three blocks. The 80-foot strip on the southerly block is now used, and appears to have been for years past for a lumber yard, being leased for that purpose by the railroad company. The strip in the next or middle block is covered with trees planted years ago by permission (not written) of said company, and appears to have been used for a long time by the public as a park. The 80-foot strip in the northerly block is used as the depot and depot grounds of the company; a new building having been erected thereon within the last two or three years. Previous to that the depot was located on the westerly side of the tracks, and the 80-foot strip in that block was used at one time partially for a grain office, and during another period an elevator building stood on a part of it. This strip of land, including the right of way, was purchased in 1853 by the predecessor of appellant from Robert B. Latham and wife, subject to the provision ‘to use the herein granted land for railroad purposes only.’ The estimated cost of the proposed improvement for a brick pavement was $8,649, of which $1,353 was assessed against the public for public benefits, and the balance divided equally, one half to the property adjacent on the easterly side of the improvement, and the other half to said 100-foot right of way and said 80-foot strip for the said three blocks, making appellant's assessment $3,648. The property lying on the easterly side of said improvement is owned by private individuals, and appears to be occupied for most of the distance by buildings used for business purposes, while along the center of said street are the tracks of the Springfield & Northeastern Traction Company, an electric interurban railroad. On Broadway street where it crosses Chicago street there is another street car line, owned by the Lincoln Railway & Light Company, occupying the center of Broadway street, and crossing this improvement. Both of these latter companies, when given the right to lay their tracks in said streets by the city of Lincoln by ordinances, agreed that they would keep the streets on which their tracks were laid in repair, and pave the portions of the streets occupied by them at their own expense, with similar paving, whenever the city required the paving of such streets. The proposed improvement ordinance only requires the paving with brick of that portion of the street not occupied by the tracks of said street railway companies, and neither of said companies is assessed in this proceeding.

[1] Counsel for appellant insist that the evidence on this record shows that the properties of said electric railway companies within the limits of said improvement were benefited far more than the cost of paving the right of way of said companies, and that they should have been assessed in this proceeding the amount of said additional benefit. Under substantially similar provisions of franchise ordinances the burden imposed upon a street railway to pave the portion of the street covered by it has been held as equivalent to an assessment for paving the street, the courts holding that whether a street railway company should pay for paving between its tracks, or less or more, rests in the sound discretion of the municipal authorities; that when the privilege to use a public street is granted by a franchise ordinance, and the ordinance is accepted and acted upon, such ordinance becomes a binding contract between the municipality and the street railway company, and cannot be revoked by either party. Billings v. City of Chicago, 167 Ill. 337, 47 N. E. 731;West Chicago Street Railroad Co. v. City of Chicago, 178 Ill. 339, 53 N. E. 112;Village of Madison v. Alton, Granite & St. Louis Traction Co., 235 Ill. 346, 85 N. E. 596;City of Lincoln v. Harts, 250 Ill. 273, 95 N. E. 200, and cases therein cited. Counsel concede that this is the rule laid down in those decisions, but earnestly insist that the law in those cases on this point has not been accurately stated. In support of their argument they cite City of Chicago v. Baer, 41 Ill. 306;Parmelee v. City of Chicago, 60 Ill. 267;Cicero & Proviso Street Railway Co. v. City of Chicago, 176 Ill. 501, 52 N. E. 866; and spring Creek Drainage District v. Elgin, Joliet & Eastern Railway Co., 249 Ill. 260, 94 N. E. 529. In these last two cases the local improvements were for drainage, and there were no provisions in the franchise ordinances affecting the assessments for that purpose. The principles laid down in the first case cited, so far as relied on in this argument, were, in effect, overruled by the United States Supreme Court in City of Chicago v. Sheldon, 9 Wall. 50, 19 L. Ed. 594, where it was held that a franchise ordinance similar to the one here in question, with stipulations fixing the proportion of the local improvement to be paid for by the company, amounted to a contract between the municipal authorities and the street railway company. That holding, where the same or similar questions have been involved, has always been followed by this court, as will be seen by an examination of the authorities heretofore cited, on the ground that the public authorities may commute a tax or special assessment for what they may hold to be its fair equivalent. See, also, on this question, State v. Illinois Central Railroad Co., 246 Ill. 188, and cases cited on page 206, 92 N. E. 814. This court held, in Village of Madison v. Alton, Granite & St. Louis Traction Co., supra, that even though, in passing such franchise ordinance and making the contract, the municipal authorities had acted improvidently, and afterwards became dissatisfied with the contract thus made, such a situation could not affect the validity of the contract. Counsel for appellant argue, at least inferentially, that these franchise ordinances are so inequitable and unjust as to be fraudulent, and therefore void. Such an ordinance is not fraudulent merely because it may turn out to be improvident or inequitable, if the public authorities have acted from proper motives. Proof of fraud must be clear and convincing to warrant interference by the courts in matters of taxation. Sanitary District v. Gifford, 257 Ill. 424, 100 N. E. 953, and cases cited. We see no reason to depart from our former rulings on this question. This objection was therefore properly overruled.

[2] The appellant further insists that the ordinance did not definitely describe the improvement, in not stating in feet and inches the width of the strip of ground in the center thereof occupied by the right of way of the interurban railroad. The wording of the ordinance on this point is as follows: ‘Excluding from said roadway of Chicago street the space between the rails, and for a distance of one foot outside the rails, of the track of the Springfield & Northeastern Traction Company,’ etc. It needs no citation of authorities to prove that the ordinance must specify the nature, character, and description of the improvement with such certainty that the property owners and the public may know what the improvement is to be, but the physical situation of the surrounding territory may aid and supplement the description in the ordinance in locating the improvement. In Pearce v. Village of Hyde Park, 126 Ill. 287, 18 N. E. 824, the court held that a reference might be made to other improvements in the village to determine the details of a sewer ordinance. In Rawson v. City of Chicago, 185 Ill. 87, 57 N. E. 35, there was a similar objection that the ordinance was indefinite in bounding the termini of the proposed improvement by a ‘right of way of a street railroad’ when no right of way was granted to said railroad. The court there held the description of the improvement in the ordinance sufficient when considered in connection with the actual boundary of the so-called right of way of the street railway. In People v. Willison, 237 Ill. 584, 86 N. E. 1094, there was a question as to the location of a sidewalk. The authorities were reviewed, and it was held that physical monuments and the physical situation of the surrounding territory could be used to make plain the meaning of the ordinance but not to contradict it. The wording of the ordinance here in question seems to be indentical with that of the local improvement ordinance in Village of Madison v. Alton, Granite & St. Louis Traction Co., supra. While it is true this point was not specifically passed upon in that case, it is evident that the court considered the description in that...