J. Burton Co. v. City of Chicago

• Decision Date: 03 December 1908
• Citation: 86 N.E. 93,236 Ill. 383
• Parties: J. BURTON CO. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

236 Ill. 383

86 N.E. 93

J. BURTON CO.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Oct. 26, 1908.

Rehearing Denied Dec. 3, 1908.

Appeal from Appellate Court, First District, on Error to Circuit Court, Cook County; Thomas G. Windes, Judge.

Suit by the J. Burton Company against the city of Chicago. A decree for complainant was affirmed by the Appellate Court (140 Ill. App. 344), and defendant appeals. Reversed and remanded, with directions.Edward J. Brundage, Corp. Counsel, Edwin H. Cassels, William D. Barge, and Emil C. Welten, for appellant.

Fred A. Bangs, for appellee.

DUNN, J.

Appellee, the J. Burton Company, filed its bill in the circuit court of Cook county against the city of Chicago and three individuals, to enjoin them from interfering with the work of excavating for and building a vault under an alley in the city of Chicago. The bill alleged that the complainant was the owner of certain real estate, in the rear of which was a public alley, over which the city had jurisdiction and control; that on February 5, 1908, the city council passed an ordinance the first two sections of which are as follows:

‘Section 1. No person shall use any space underneath the surface of any street or other public ground in this city, or construct or maintain any structure thereunder, without first obtaining a permit so to do from the commissioner of public works of the city. No such permit shall be issued except as hereinafter provided, and no such permit shall be transferred or assigned, nor shall any right or privilege thereunder be transferred or assigned without the written consent of the commissioner of public works.

‘Sec. 2. Application for such permits shall be in writing, stating specifically the space desired, its length, breadth and depth, the use intended to be made thereof and the structure to be built therein. No permit shall be issued hereunder for the use of any space under the surface of the roadway of any street or other public ground.’

Section 3 provides that ‘every applicant for such permit shall file with his application his bond * * * for the maintenance of the street, alley or other public way, or the sidewalk over such space, as the case may be, in such condition that said street, alley or public way, or the sidewalk, shall at all times, after such structure is completed or such space is covered, be safe for public use.’ Section 4 provides that ‘the person, firm or corporation making, using or maintaining any structure or using space underneath the surface of any street, alley public way or public ground, shall render to the city, as the annual compensation for such use,’ a sum to be determined according to a rule stated. Section 6 provides that ‘if any person now using any space underneath any street, public alley, sidewalk or public way shall fail to take out a permit for such use, as herein provided, within ninety days after this ordinance is in effect, then the commissioner of public works shall proceed to remove every such structure and close the space therein.’ Section 11 provides that ‘nothing in this ordinance contained shall be held or construed to apply to any person now using any such space underneath the surface of any street or other public ground according to the terms of any ordinance heretofore passed which requires the payment of compensation for such use if such person is making such payments nor so long as such payments are made according to the terms of such ordinances. * * * Nothing in this ordinance contained shall preclude the city from revoking any permit issued hereunder when the space described in such permit is needed for public use.’

It was further alleged that on April 12, 1906, the commissioner of public works issued a permit to complainant to excavate for, construct, and maintain, a vault 16 feet in width underneath the surface of the alley, in accordance with plans prepared for said work and approved by the commissioner, and that the complainant paid to the city the sum of $5 as compensation from May 1, 1906, to November 1, 1906, as provided by the permit, and filed a bond in compliance with the terms of the ordinance. The bill then alleged that upon the opposite side of the alley, and abutting thereon, was property owned by Kupka, Bocek, and Peklo, who were made parties defendant; that the complainant had, in process of construction, a building upon its property, and had commenced to excavate, and that these opposite owners had complained about the excavation, and had requested a certain alderman to see that the city should stop the excavation and prevent the use of the vault; that they were endeavoring to secure the co-operation of the city, and had threatened by force to prevent the complainant from doing the work and using the space under the alley, and unless they were prevented from so doing, they would stop the work of excavation; that since the granting of the permit the complainant had caused plans to be prepared for the construction of the building and of the vault, and had erected a boiler house in such a position that if it was unable to use the vault, it would be obliged to make changes and alterations in the building at an expense of $2,500. It was then further alleged, upon information and belief, that the owners of the real estate on the opposite side of the alley had endeavored to intimidate the workmen employed on the excavation, had threatened them with violence and bodily injury, and that the city, in consequence of their activity, had threatened to stop the work, and had taken some steps toward that end. The prayer of the bill was for an injunction restraining the defendants from in any way interfering with or preventing, either by threats or actions, the excavation of the alley, the construction of the vault, or the use and occupation of the space under the alley, and restraining the city from revoking the contract. The complainant dismissed the bill as to the individual defendants. A demurrer interposed by the city of Chicago was overruled, and, the city electing to stand by its demurrer, a decree was entered in accordance with the prayer of the bill. From a judgment of the Appellate Court affirming this decree, an appeal is now prosecuted to this court.

It is claimed by the appellant that section 2 of the ordinance set out in the bill prohibits the issuing of a permit for a vault under the roadway of an alley, while the appellee insists that the prohibition of that section has no application to alleys. Reading sections 1 and 2 together, there would seem to be little occasion for construction. The words are to be given their usual and popular meaning, and the same words occurring in different parts of the ordinance are to be...