Cosgrove v. City of Chicago

• Decision Date: 07 October 1908
• Citation: 235 Ill. 358,85 N.E. 599
• Parties: COSGROVE et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

235 Ill. 358

85 N.E. 599

COSGROVE et al.

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

June 18, 1908.

Petition for Rehearing Stricken Oct. 7, 1908.

Error to Superior Court, Cook County; Farlin Q. Ball, Judge.

Suit by Emma Cosgrove and others against the city of Chicago and another. There was a decree dismissing the bill after sustaining a demurrer thereto, and complainants bring error. Affirmed.John Gibson Hale, for plaintiffs in error.

George A. Mason and William T. Hopeman (Edward J. Brundage, Corp. Counsel, of counsel), for defendants in error.

The plaintiffs in error filed their bill for relief against the city of Chicago and John R. Thompson, treasurer, which, as subsequently amended, alleged that the complainants were the owners of certain real estate fronting on Monroe avenue, in the city of Chicago, between Sixtieth and Sixty-Seventh streets; that on January 5, 1903, the city presented to the county court its petition for the levy of a special assessment for the improvement of Monroe avenue between Sixtieth and Sixty-Seventh streets by constructing a granite concrete combination curb and gutter, and grading, and paving with asphalt, the roadway of said street, except the steam and street railway rights of way, at an estimated cost of $40,500; that no benefits were assessed against the city, but the total cost was assessed against the property, except 200 feet owned by the Illinois Central Railroad Company and about 125 feet owned by the Oakwood Cemetery Association, and the assessment was confirmed on March 4, 1903, and subsequently vacated on October 7, 1903; that on November 24, 1903, the city presented a supplemental petition praying for a deficiency assessment of $1,066.50, which was confirmed, and on December 28, 1903, it was ordered by the court that the original assessment for said improvement stand, and it was certified to the collector by proper warrants and from that time became a valid lien upon the property; that on May 15, 1903, the city let a contract for the improvement to the R. F. Conway Company for $41,566.50, and the company executed to the city a bond for $21,000 for the fulfillment of the contract, and afterwards the city advanced to the company $2,800 on account of the contract.

The bill further alleged that on March 17, 1904, the city presented another petition to the county court for the levy of another special assessment for the same improvement at an estimated cost of $48,500; that no benefits were assessed in this proceeding against the city, but the entire cost was assessed against the real estate, except the Illinois Central Railroad Company and the Oakwood Cemetery Association property, as above specified, and warrants therefor were certified as provided by law; that each of the assessments as levied was payable in five annual installments, with 5 per cent. interest, and that complainants have paid three of these installments in ignorance of the levying of the said former assessment and of the letting of the contract thereunder; that each of the assessments was made by John A. May as commissioner, who was in the regular employ of the city and was prejudiced in favor of the city, and he made the assessments with the fixed purpose of not assessing any benefits against the city and of levying the entire cost upon the owners of the property, without regard to special benefits; that none of the improvements were petitioned for by the property owners, but the same were put through by a member of the city council who had been closely identified with the land department of the Illinois Central Railroad Company, and since the improvement proceedings were commenced the railroad company has abandoned the use of the land so owned by it, except about 20 feet covered by its tracks, and the same has been sold to a syndicate composed of the members of the city council and others, so that the owners of property fronting on the avenue are compelled to pay for the improvement in front of the property owned by the railroad and the cemetery association, at the rate of $6.10 per front foot; that the failure to assess these properties, both of which were benefited in same manner and to the same extent as the other property fronting on the street, was either fraudulent on the part of the agents of the city, for the purpose of favoring the railroad company and the cemetery association, or was the consequence of gross neglect on the part of such servants; that the levy of the last assessment after the first assessment had been made and the contract let was unlawful, void, and a fraud upon the property owners; that the improvement was completed in 1904, and in its construction the city caused to be removed from the street a large amount of macadam and paving material for which the property owners had been taxed and assessed, and the city caused the grade of the street to be lowered about 10 inches without notice to the property owners and without the recommendation of the board of local improvements, and in consequence thereof the property has been damaged the sum of $2 per front foot.

It was further alleged that at the time of the consideration of the improvement of Monroe avenue by the board of local improvements the board assured the property owners that Kimbark avenue, immediately west of Monroe avenue, and Woodlawn avenue and Jackson Park avenue, would be paved alike with asphaltum, and that, relying upon such assurance, the complainants made no objections to the confirmation proceedings; that Kimbark avenue has been paved with a macadam pavement and the grade of Kimbark avenue raised about the space which the grade of Monroe avenue has been lowered; that the improvement of Woodlawn avenue has been changed to a paving with other material than asphaltum; that travel and traffic on Monroe avenue are of a heavy and undesirable nature, and by reason of its being paved with asphalt paving, and the failure of the city to pave the other streets in like...