City of Peoria v. Peoria Ry. Co.
| Decision Date | 22 June 1916 |
| Docket Number | No. 10717.,10717. |
| Citation | 274 Ill. 48,113 N.E. 170 |
| Parties | CITY OF PEORIA v. PEORIA RY. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Peoria County Court; Chester F. Barnett, Judge.
Assessment proceedings by the City of Peoria in which the Peoria Railway Company filed objections. From a judgment for the City, the Company appeals. Reversed and remanded.Page, Hunter, Page & Dallwig, of Peoria, for appellant.
R. H. Radley, of Peoria, for appellee.
An ordinance was passed for widening the south end of Knoxville avenue, in the city of Peoria, from 33 feet to 66 feet for a distance of about 800 feet, for condemnation of the necessary land, and for putting the surface of the avenue in condition for public travel. The ordinance provided that the improvement, the compensation for private property and the whole cost thereof, excluding the estimate of the engineer, amounting to $1,600, should be paid for by special assessment. The petition for the improvement was filed in the county court, and an assessment roll was prepared and filed, in which the property of the appellant, the Peoria Railway Company, was assessed $5,000. The appellant filed objections to the assessment, both on legal grounds and because it would not be benefited by the improvement. The court overruled the legal objections, and upon a jury trial of the issue concerning benefits there was a verdict against the appellant, upon which judgment was entered, and an appeal was allowed and perfected.
Main street, in the city of Peoria, runs northwest and southeast. Knoxville avenue starts from Main street and runs north for 2 miles or more, and is 66 feet wide, except for about 800 feet at the south end, extending from Main street north diagonally through one block. The appellant has a single-track railway on Glendale avenue, which runs northeast and southwest and crosses Knoxville avenue about the center of the portion to be widened. After crossing Knoxville avenue the line turns southeast on Main street, with double tracks, and passes along Main street at the south end of Knoxville avenue. The district assessed was about 3 miles long and from half a mile to a mile and a half wide at different places. The assessment roll described 16 different portions of the appellant's tracks on various streets throughout the whole district and made an assessment of a lump sum against the whole.
It is assigned for error that the court refused to hold that the improvement was not a local improvement. There was no objection on that ground when the judgment of the court on the legal objections was rendered, but after the jury trial on the question of benefits the appellant asked leave to file additional objections, the fourth of which was that the improvement was not a local improvement. The motion, which was addressed to the discretion of the court, was denied, and, as no reason was given for not presenting the objections before the judgment on the legal objections, the discretion was not abused. The question, however, may come up again, and therefore it is desirable to have it settled now. The argument is based on the fact that substantially nothing was assessed against property in the locality of the improvement, and therefore the improvement was regarded as of no local benefit. Whether an improvement is local or not is a question of law for the court, to be determined from the nature and object of the improvement. City of Chicago v. Blair, 149 Ill. 310, 36 N. E. 829,24 L. R. A. 412;City of Waukegan v. De Wolf, 258 Ill. 374, 101 N. E. 532,45 L. R. A. (N. S.) 918, Ann. Cas. 1914B, 538. The action of a city official in making an assessment does not determine the nature of the improvement, and, although the widening of the street would improve it for general travel, it would necessarily be a particular advantage to the immediate locality, and it was a local improvement.
It is next argued that the ordinance was void because it provided that the avenue, after widening, should be put in condition for public travel by the commissioner of public works, and the expense was to be paid out of the general fund of the city. The objection is that in requiring the avenue to be put in condition for public use no grade was fixed, it was left to the commissioner of public works to exercise his own judgment as to what should be done, and the statute requiring work costing more than $500 to be let to the lowest responsible bidder was disregarded. The appellant had a right to an enforceable provision that the avenue should be put in condition for the uses of a street, and on such a provision being made it could be enforced, but nothing was to be paid out of the special assessment for that purpose. The cost of putting the avenue in condition was to be paid out of the general fund of the city, and the relation and interest of the appellant in the method of executing the provision were no different from that of any other citizen. Surely...
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