Ewart v. Vill. of Western Springs

• Decision Date: 17 June 1899
• Citation: 54 N.E. 478,180 Ill. 318
• Parties: EWART et al. v. VILLAGE OF WESTERN SPRINGS.
• Court: Illinois Supreme Court

180 Ill. 318

54 N.E. 478

EWART et al.

v.VILLAGE OF WESTERN SPRINGS.

Supreme Court of Illinois.

June 17, 1899.

Appeal from Cook county court; Robert H. Lovett, Judge.

Proceedings by the village of Western Springs for the confirmation of a special assessment. From a judgment of confirmation, William D. Ewart and others appeal. Affirmed.

Phillips, J., dissenting.Edward F. Gorton and George W. Brown, for appellants William D. Ewart, Link Belt Machinery Co., and Lula S. Knowlson.

W. P. Quinby, for appellant Western Springs Land Ass'n.

Williams, Holt & Wheeler, for appellant Marshall Field.

Frederick A. Willoughby, for appellee.

This is a proceeding commenced in the county court of Cook county by the appellee, the village of Western Springs, by the filing of its petition therein on June 24, 1897, for the confirmation of a special assessment to pay the cost of constructing a plant for street lighting in that village by electric light, including power house, electric generator engine, poles, electric conductors and lamps, and necessary appurtenances. Objections were filed by the appellants to the confirmation of the assessment; a hearing was had thereon in the latter part of November, 1897; and on December 3, 1897, the county court entered an order sustaining one of the objections to the assessment. The objection so sustained was that one of the commissioners appointed to levy the assessment was the owner of property assessed therein. The court held that said objection was valid, and ordered that, by reason thereof, the assessment be annulled and set aside, and the application to confirm it be denied. In the same order the court, upon the application of the petitioner, the village, reduced the amount of the assessment 25 per cent. from the total estimated cost thereof, and appointed new commissioners to make a new assessment. The original assessment was for $6,000, but on December 31, 1897, a new assessment roll was made for $4,500 and filed. Objections were also filed by the same objectors to the new assessment. On February 5, 1898, a hearing was had upon the objections filed to the new assessment, and on February 9, 1898, the county court entered an order overruling all of the objections, to which order exception was taken. A jury was called and sworn, and a verdict rendered by them in favor of the appellee, the village, that the property of the appellants was not assessed more than it was benefited, nor more or less than its proportional share of the cost of the improvement. Judgment was thereupon entered confirming the assessment, and the present appeal is from such judgment of confirmation.

MAGRUDER, J. (after stating the facts).

1. A general objection is made by the appellants to the effect that the municipality has not the power or authority to make the proposed improvement. More specifically stated, this objection is that the power to light the village cannot be exercised by way of special assessment. The contention of appellants is that such an improvement as the ordinance in this case contemplates is not a local improvement, within the meaning of the constitution and the statute, and that, therefore, its cost cannot be assessed upon the property alleged to be benefited thereby. In Hughes v. City of Momence, 163 Ill. 535, 45 N. E. 300, we held that the cost of constructing a reservoir, sinking a well, erecting a standpipe and pumping works, and buildings for the same, with a view of constructing waterworks in a city, were not local improvements, but were of general utility to the inhabitants of the city, and must be paid for by general taxation. In the same case, however, it was held that the laying of pipes for the conveyance of water along particular streets was local to the particular streets on which such pipes were laid, and of special benefit to the property thereon, and was therefore a local improvement, which could be paid for by special assessment or special taxation. In O'Neil v. People, 166 Ill. 561, 46 N. E. 1096, it was held that, where an ordinance provides for the construction of a system of waterworks, the construction of the standpipe, engine house, etc., is an improvement that is general, and not local, in its character; but, where such ordinance contemplates the construction merely of reservoirs, fire hydrants, and water mains, these latter are local improvements, and may be paid for by special assessment. Again, in Hewes v. Glos, 170 Ill. 436, 48 N. E. 922, it was held that, where corporate authorities attempt to construct a general waterworks system for fire protection and general uses by special assessment, such an improvement is not local in its character, and an assessment for such a purpose ought not to be confirmed by the court; but that a city or village has the power to provide for a system of waterworks for fire protection and for the use of the inhabitants, and that the laying of water-main pipes for the distribution of water along particular streets for the use of the inhabitants is a local improvement, for which a special assessment can be levied. In Harts v. People, 171 Ill. 458,49 N. E. 538, it was again held that the construction of reservoirs, fire hydrants, and water mains is a local improvement, which can be paid for by special assessment, but, where an ordinance contemplates the erection of a city hall, pumping works, pumps, and standpipes, that such structures are improvements of a general character, and not local improvements, within the meaning of the law. These cases draw a distinction, so far as the construction of systems of waterworks are concerned, between the standpipe, pumping works, and buildings, which are of general utility, and the pipes, which convey the water along particular streets. The former must be paid for by general taxation, but the latter are held to be local improvements, which may be paid for by special assessment.

If the water mains and hydrants of a system of waterworks, which extend along the streets of a city, are a local improvement, we see no reason why the poles, wires, and lamps in an electric light system are not also a local improvement. So far as the plant for lighting the streets by electricity includes the power house and electric generator engine, the latter may be regarded as improvements of general utility, and as not coming within the legal definition of ‘local improvements.’ But the poles, wires, and lamps in an electric light system are the means of furnishing the necessary light for the protection of the property of the citizens, just as the water mains and hydrants of a system of waterworks are the means of furnishing needed water for fire protection and other uses of the citizens. It cannot be said that property upon a street lighted with electric light is not more valuable than property upon a street where there is no such electric light. Property is in fact specially benefited by electric or other adequate lighting along the street on which it is situated, quite as much as it is benefited by water mains. It follows that, if water mains are local improvements, poles and wires in an electric light system are also local improvements. The former are conduits for water; the latter, for electricity. So, also, it must be said that, if hydrants attached to the water mains are a local improvement, lamps attached to the wires in an electric lighting system are local improvements, because the latter are the means of using the electricity, as the former are the means of using the water. The test whether an improvement is local or not depends upon the question whether or not it specially benefits the property assessed. The improvement which consists in the erection of poles, wires, and lamps in an electric light system is certainly as much a permanent improvement as the water mains and hydrants in a system of waterworks. City of Chicago v. Blair, 149 Ill. 310, 36 N. E. 829;Carpenter v. Electric Co., 178 Ill. 29, 52 N. E. 973.

Sections 2 and 3 of the ordinance in the case at bar conform to the rule laid down in the cases above referred to. Section 2 of the ordinance provides that so much of the improvement as relates to the power house and generator plant, including engine, generator, and all appurtenances located at the power house, shall be paid for by general taxation. Section 3 provides that so much of the improvement as relates and refers to the placing, erection, and construction of poles, electric conductors, street lamps, and all appurtenances thereto belonging, not included in said power house or the generator plant located at said power house, shall be made, and the cost thereof shall be paid for, by special assessment to be levied upon the property benefited thereby. We are therefore of the opinion that the village had the power, under the law, to make the proposed improvement in the manner set forth in the ordinance, and that the county court committed no error in overruling the objections alleging the want of such power.

[180 Ill. 324]2. Several technical objections were made by the appellants to the confirmation of the assessment, which were not improperly overruled. The ordinance provides ‘that lines of poles and conductors be placed upon streets of the village as follows: Forty-Seventh street (South boulevard), from the power station at the waterworks pump house to East boulevard; Prairie avenue, from Forty-Seventh street to Burlington street; Park avenue, from Forty-Seventh street to Burlington street; Lawn avenue, from Forty-Seventh street to Burlington street.’ It is claimed that the ordinance is uncertain and insufficient ‘in the specification of the nature, character, locality, and description of said improvement,’ upon the alleged ground that, according to the map introduced in evidence, neither Prairie, Park, nor Lawn avenue runs to Forty-Seventh street, but to South boulevard. It is said to be impossible to tell, from the description in the ordinance, which street is really...