Gage v. People ex rel. Raymond

• Decision Date: 16 December 1902
• Parties: GAGE et al. v. PEOPLE ex rel. RAYMOND.
• Court: Illinois Supreme Court

200 Ill. 432

65 N.E. 1084

GAGE et al.

v.PEOPLE ex rel. RAYMOND. ^*

Supreme Court of Illinois.

Dec. 16, 1902.

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

Proceedings by the people, on the relation of the collector of taxes, against the property of Augustus N. Gage and others, to collect a special assessment of taxes. From a judgment and order of sale, the property owners appeal. Reversed.

Gail E. Deming, for appellants.

J. L. McKittrick, and George Gillette, for appellee.

CARTWRIGHT, J.

A statement of the nature of this case and the questions involved will be found in opinion delivered upon a former appeal in Gage v. People, 193 Ill. 316, 61 N. E. 1045, when the judgment of the county court was reversed, and the cause was remanded to that court for a new trial, with directions to admit all such proper testimony as might tend to show that the improvement actually made was not the improvement authorized by the ordinance. This was a question of fact, and the single issue remaining in the case. It has been tried as directed in the remanding order, and determined adversely to appellants. Their objections were overruled, and judgment was rendered against their lots and lands for the first installment of the special assessment. The rules of law under which the question is to be determined have been fully stated in our decisions. When a local improvement is provided for, the ordinance must prescribe the nature, character, locality, and description of the improvement, and the municipal authorities are invested with power to let the contract for such improvement, to inspect the work, and to accept it when completed. If the improvement is the same one provided for by the ordinance, the public will be bound, in this form of proceeding, by the acceptance. Municipal authorities acting for the public, and having power to determine whether the contract has been performed in compliance with its terms, will bind the public and the property owner by their decisions, although the work was not, in fact, done with as good materials as the ordinance required, or the improvement is less beneficial to the property owner than he had a right to expect. On the other hand, the municipality has no right to change the nature, character, locality, and description of the improvement as prescribed by the ordinance. The law does not permit authorities to change the improvement authorized for any other or different one, or to accept a different improvement from the one for which the assessment was levied. In People v. Whidden, 191 Ill. 374, 61 N. E. 133,56 L. R. A. 905, the ordinance provided for a vitrified brick pavement, and the improvement mad and accepted was the identical one provided for in the ordinance. There were slight deviations in some places in the thickness of the pavement or in the foundation bed,-in no place more than an inch,-and some of the materials used were inferior in quality. The curb walls were not plastered as completely as required, and the plaster and concrete were not of the specified grade. The street was graded and paved, and the improvement was the same one provided for by the ordinance, although not as durable or beneficial as required by the ordinance. In Young v. People, 196 Ill. 603, 63 N. E. 1075, the ordinance provided for a foundation layer, six inches deep, of the best quality of broken limestone. The city substituted a seven-inch layer of rolling mill slag, and no limestone whatever was used in the foundation. Rolling mill slag is essentially different from the best broken limestone, and we considered that the substitution of it made the improvement a different one from that specified in the ordinance. It was held that the property owners could not be called upon to pay for a pavement of slag under an ordinance providing for a limestone pavement. When this case was here before, it was held that it would be a good defense to the application for judgment that the roadway, as finished, was not the macadam which had been provided for by the ordinance, but was, as a matter of fact, no more than a dirt or mud roadway.

By the ordinance providing for the improvement it was ordained that the system of streets therein mentioned should be ‘graded, curbed, guttered, macadamized, and otherwise improved’ in accordance with the plans and specifications therein contained, the finished roadway to be 27 feet wide. The provisions relating to grading and paving the roadway were as follows: ‘The street shall be graded throughout the entire length eleven and one-half feet on each side of the center to a point thirteen inches below the fixed grade at the center and nineteen inches below the fixed grade eleven and one-half feet distant each side of the center. After the grading of the roadway has been finished to the grade line, said roadway shall be thoroughly rolled throughout with a...