Kelly v. City of Chicago

• Decision Date: 18 December 1901
• Citation: 193 Ill. 324,61 N.E. 1009
• Parties: KELLY et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

193 Ill. 324

61 N.E. 1009

KELLY et al.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Dec. 18, 1901.

Error to Cook county court; O. N. Carter, Judge.

Petition by the city of Chicago against John T. Kelly and others for judgment in special assessment proceedings. From a judgment confirming the assessment, defendants bring error. Reversed.

William F. Carroll, for plaintiffs in error.

Charles M. Walker, Corp. Counsel, Denis E. Sullivan, and Wm. M. Pindell, for defendant in error.

RICKS, J.

This is a writ of error to reverse a judgment confirming a special assessment levied to curb, grade, and pave with cedar blocks Sixty-Ninth street, from South Chicago avenue to Cottage Grove avenue, and other streets in the city of Chicago. The ordinance provides for a stone curb, to be of the best quality of Berea sandstone; the stones to be four feet long, three feet deep, and five inches in thickness, with top edge full and square; each curbstone to have a straight base the whole length, and ‘to be firmly bedded upon flat stones.’ The ‘flat stones' were not otherwise described in the ordinance. The plaintiffs in error filed objections to the confirmation of the assessment, assigning 27 specific objections thereto. The fifth objection is as follows: ‘The ordinance authorizing said improvement does not specify the nature, character, locality, and description of the proposed improvements.’ And the sixth is: ‘Said ordinance is void for uncertainty, insufficiency, and informality.’ In the case of some of the objectors a jury was impaneled upon the question of the extent of benefits, and the cause tried upon that question. In some of the cases the assessment was reduced, and in others it was confirmed as made. The errors assigned are: First, that the court was without jurisdiction; and, second, that the ordinance was insufficient, in that the quality, number, location, and dimensions of the flat stones described in the ordinance are not specified, and there is no basis or data from which the commissioners could make an intelligent estimate of the cost of the proposed improvement. The second error is the only one insisted upon or discussed in the brief, and the one to which we will confine our consideration.

The ordinance in question is, so far as we can see, precisely like a number of other ordinances that have been before this court, and which have been by us held defective because of the insufficiency of the description of the flat stones. Lusk v. City of Chicago, 176 Ill. 207, 52 N. E. 54;Foss v. Same, 184 Ill. 436, 56 N. E. 1133;Kuester v. Same, 187 Ill. 21, 58 N. E. 307. In this case there is no bill of exceptions, and we are therefore unable to know what evidence was adduced on the hearing. The plaintiffs in error insist that the cases above cited are controlling, and that this judgment should be reversed. Defendant in error urges that, as there is no bill of exceptions in the case, the presumption of the court will be that the trial court heard all evidence that was proper to be heard and necessary to have sustained the judgment; and further insists that in view of our holding in the cases of Kelly v. City of Chicago, 148 Ill. 90, 35 N. E. 752,Delamater v. Same, 158 Ill. 575, 42 N. E. 444, and Bass v. People, 159 Ill. 207, 42 N. E. 880, we are committed to the proposition that the presumptionof the correctness and regularity of this proceeding will obtain until error is shown by the record. It further insists that in this case the ordinance is such, and the deficiencies complained of are of such a character, that they could be cured by proof aliunde, showing that the expression, ‘bedded upon flat stones,’ in an ordinance such as this, has a well-known meaning among contractors and constructors of such works in the city of Chicago, and that such contractors, in bidding upon such work, would uniformly understand the size, character, and number of flat stones necessary for the proposed work; that the testimony was competent, and the presumption is that it was heard and taken into consideration upon the confirmation. In support of this contention it cites Levy v. City of Chicago, 113 Ill. 650;Jacksonville Ry. Co. v. City of Jacksonville, 114 Ill. 562, 2 N. E. 478;Latham v. Village of Wilmette, 168 Ill. 153, 48 N. E. 311; and Shannon v. Village of Hinsdale, 180 Ill. 202, 54 N. E. 181.

In the Levy Case, supra, the...