City of Peoria v. Cowen

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: City of Peoria v. Cowen, 326 Ill. 616, 158 N.E. 414 (Ill. 1927)
• Decision Date: 22 October 1927
• Docket Number: No. 18010.,18010.
• Parties: CITY OF PEORIA v. COWEN et al.

326 Ill. 616

158 N.E. 414

CITY OF PEORIA

v.COWEN et al.

No. 18010.

Supreme Court of Illinois.

Oct. 22, 1927.

Objections by Thomas D. Cowen and others to the confirmation of a special tax for street improvement in the city of Peoria. From a judgment of the county court confirming the tax, objectors appeal.

Reversed and remanded, with directions.Appeal from Peoria County Court; Glen J. Cameron, Judge.

R. H. Radley, of Peoria, for appellants.

Harry C. Heyl, Corporation Counsel, and Robert E. Kavanaugh, City Atty., both of Peoria, for appellee.

STONE, J.

This cause is here on appeal from a judgment of the county court of Peoria county confirming a special tax for the improvement of West Bell avenue, in the city of Peoria. The improvement ordinance provides for the paving, curbing, and parking of West Bell avenue, the installation of an ornamental lighting system, and the establishment of certain storm water sewer connections on said street. The improvement is three blocks in length, and extends west from the west property line of Bootz avenue to the extended northeasterly line of Loucks avenue. The improvement crosses Alice avenue and North Elizabeth street. The ordinance provides for a re-enforced concrete pavement of a width of 45 feet between curbs, excepting therefrom certain parkings of the width of 13 feet in the center of the street. Provision is made for 2 ornamental electric street lights and standards to be placed in the excepted portions of the improvement east of North Elizabeth street and one light in each of the excepted portions or parkings west of North Elizabeth street. The ordinance describes somewhat in detail the description of the measurements and materials to be used for these lights, and provides that they shall be of the same kind and material as those in Hanssler place, adjacent to Bell avenue. There are 2 of these parkings or excepted strips in each block, or 6 in all. The ordinance provides that in the two blocks east of North Elizabeth street there shall be in each of the four excepted portions or parkings 2 ornamental electric street lights and in the block west of North Elizabeth street there shall be one ornamental electric street light in each of the two excepted portions or parkings, making a total of 10 ornamental lights. It is also provided that all necessary cables and conduits for the ornamental electric lights shall be placed under the ground before the pavement is laid. The ordinance also provides for the purchase of 10 ornamental light standards and for one transformer.

The county court, on hearing, overruled all legal objections. Seven objections were originally filed, and by leave of court four additional objections were filed at the time of the hearing. Three of these objections go to the amount of benefits and are not urged here. The objections urged here are: First, there is a material and willful variance between the resolution and ordinance on the one hand and the estimate on the other, and between the ordinance and the estimate; second, the ordinance does not provide for a sufficient description of the wings of the pavement at intersecting streets or the electric light standards and catch-basin covers; third, the improvement is a double improvement; and, fourth, the ordinance provides for the doing of certain sewer work that is not provided for in the estimate.

[1] As to the first point, the appellants urge a willful and material variance in this, that the resolution and one paragraph of the ordinance provide for 12 ornamental light standards, while another paragraph of the ordinance calls for 10 ornamental light standards. The resolution, the narrative part of the estimate, and one of the earlier paragraphs of the ordinance refer to 2 ornamental electric light standards in each excepted strip or parking. As there are 6 of such excepted strips or parkings in the center of this proposed improvement, this would make a total of 12 ornamental light standards. The estimate provides for 10. By a paragraph of the ordinance describing the location of these lights it is provided as follows:

‘The placing of two ornamental street lights as designated above shall apply only to that part of the improvement which is east of North Elizabeth street. The excepted portions which lie west of North Elizabeth street shall contain one light.’

The ordinance thus provides for 10 ornamental light standards-2 in each of the 4 excepted portions or parkings lying east of North Elizabeth street and one each in the 2 excepted portions or parkings lying west. Section 9 of the Local Improvement Act (Smith's Stat. 1925, p. 441) provides, in part, as follows:

‘The recommendation by said board [of local improvements] shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and if a variance be shown on the proceedings in the court, it shall not affect the validity of the proceeding, unless the court shall deem the same willful or substantial.’

[2] The resolution and the ordinance must agree as to the nature, character, locality, and description of the improvement. The object of the resolution is to furnish such a general description of the proposed improvement and its estimated cost as will give the property owners a general understanding of what is proposed to be done and the cost of doing it. The ordinance must be consistent with the resolution and must not change the nature, character, locality, or description of the improvement. City of Chicago v. Gage, 237 Ill. 328, 86 N. E. 633. In this case it will be seen from an examination of the entire ordinance and its comparison with the estimate that 10 ornamental light standards are to be provided, and there is not a vital variance between the ordinance and the estimate. The appellants' first objection cannot be sustained.

[3]The second objection urged here is that the ordinance does not sufficiently provide for and describe the wings of the pavement at street intersections. It is shown by the description in the ordinance that the wings are to be constructed on an arc of a circle of a radius of 15 feet. The center of the circle is definitely located with respect to the center line of West Bell avenue, Alice avenue, and North Elizabeth street. An engineer can, by the description given, definitely locate and form the wings. The ordinance is therefore sufficient.

[4][5] It is also objected that the ordinance is insufficient in its description of the ornamental light standards, in that it provides that they shall be of the same kind of material as those already installed in Hanssler place. Designation of the elements of an improvement by providing that they be of the same material and character as another existing object or element in use is not a sufficient description. Washburn v. City of Chicago, 202 Ill. 210, 66 N. E. 1033. In this case, however, the ornamental light standards are further described as to dimensions, height, size, and materials used in the base, and method of construction. The rule in the Washburn Case, therefore, does not apply here, as there is a sufficient description, in addition to designation, by reference. The catch-basins are not only described as of a standard pattern used by the city of Peoria, but they are also described by dimensions, form, materials, and weight. The ordinance is sufficient in the description of the ornamental lights and catch basin covers, and the appellants' second objection cannot be sustained.

[6] The third objection urged here is that the improvement is double, in that it provides for an ornamental lighting system and a pavement with curb and storm water sewer connections. Counsel for the appellants cites Weckler v. City of Chicago, 61 Ill. 142,...