Gage v. City of Chicago

• Decision Date: 16 December 1903
• Citation: 207 Ill. 56,69 N.E. 588
• Parties: GAGE v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

207 Ill. 56

69 N.E. 588

GAGE

v.CITY OF CHICAGO. ^*

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Cook County Court; O. N. Carter, Judge.

Action by the city of Chicago against Henry H. Gage. From a judgment confirming a special assessment, defendant appeals. Affirmed.

F. W. Becker, for appellant.

William M. Pindell (Charles M. Walker, Corp. Counsel, and Edgar Bronson Tolman, of counsel), for appellee.

BOGGS, J.

This is an appeal from a judgment confirming a special assessment levied under the provisions of an ordinance of the city of Chicago providing for plastering subwalls, constructing granite concrete gutters, a graniteconcrete combined curb and gutter, grading, and paving with asphalt, North Wood street from Kinzie street to West North avenue.

It is insisted that the scheme for the improvement of the street was not originated by the board of local improvements. In November, 1900, the board of local improvements had under consideration the advisability of recommending to the city council, for adoption, an ordinance providing for paving North Wood street from Chicago avenue to Milwaukee avenue with paving brick. The board of local improvements had ordered that an estimate be made of the cost of improving that portion of the street with brick. While the board of local improvements were awaiting the estimate of the cost of paving with brick, the city council of the city adopted the following order: ‘Council Order Nov. 12, 1900. Ordered that the board of local improvements be and they are hereby directed to prepare and submit to this council an ordinance for paving with asphalt North Wood street from Kinzie street to North avenue. Presented by Messrs. Bulpus, and Maypole, Strauss, Leininger, Kunz, aldermen 14th, 15th and 16th wards. Wm. Loefler, City Clerk.’ On the 13th day of August, 1901, the board of local improvements entered the following order: ‘On the recommendation of the secretary the previous order for an estimate for paving with brick Wood street from Chicago avenue to Milwaukee avenue was rescinded, and an estimate ordered, in compliance with the order of council, for paving said street with asphalt, from Kinzie street to North avenue.’ Afterwards, on the 15th day of April, 1902, the city council adopted an ordinance presented by the board of local improvements providing for the paving of North Wood street for the distances as prescribed in the order of the city council, and with asphalt, as prescribed in said order.

In Walker v. City of Chicago, 202 Ill. 531, 67 N. E. 369, we held the board of local improvements possessed the sole power to originate a scheme for a local improvement, without petition and of its own motion; that the city council had no power to direct or in any way control the board, and that any order or resolution of the city council ordering the board of local improvements to prepare and present an ordinance for an improvement was absolutely void; and that out of the official action of the board of local improvements in preparing and recommending an ordinance to the city council for an improvement arose a conclusive presumption that the board acted upon its own motion, or treated the resolution of the city council as a mere petition. That ruling is applicable to the contention here presented, and decides it adversely to the appellant.

The ordinance provided that all asphaltum required to be used in the improvement ‘shall be asphaltum obtained from Pitch Lake, in the Island of Trinidad, or asphaltum which shall be equal in quality for paving purposes to that obtained from Pitch Lake, in the Island of Trinidad. It is objected that the ordinance is in this respect uncertain, in that it, to quote from appellant's brief, ‘gives some one (not named) the discretion to substitute for the asphalt...