Lindsay v. City of Chicago

• Decision Date: 14 November 1885
• Citation: 3 N.E. 443,115 Ill. 120
• Parties: LINDSAY v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

115 Ill. 120

3 N.E. 443

LINDSAY

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from county court, Cook county.

E. J. Whitehead, for appellant.

G. M. Haynes, for appellee.

CRAIG, J.

This is an appeal from a judgment of the county court of Cook county, confirming a special assessment. In the petition presented to the county court, in which the city of Chicago asks to have the assessment confirmed, it is alleged that on the thirteenth day of November, 1882, the city council passed an ordinance providing that Canalport avenue, from Canal street to Halstead street, be paved with a certain specified pavement. What purports to be a copy of the ordinance is attached to the petition. On the day fixed by the court for those interested to file objections to the confirmation to the assessment, appellant appeared and objected in writing to the confirmation of the assessment, upon the alleged ground that no ordinance was ever passed by the city council of Chicago directing or authorizing the paving of Canalport avenue, as alleged in the petition. On the hearing, the petitioner offered in evidence a certified copy of the ordinance set out in the petition, and the appellant objected to the reading of the certified copy in evidence because there was no evidence that the ordinance had been passed by the city council of Chicago. The court overruled the objection and entered a judgment of confirmation. It was essential for the city, in order to obtain a judgment of confirmation, to aver and prove that an ordinance authorizing the improvement had been passed. Section 19 of article 9 of the city and village act provides:

‘Whenever such local improvements are to be made wholly or in part by special assessment, the said council in cities * * * shall pass an ordinance to that effect, specifying therein the nature, character, locality, and description of such improvement.’ Rev. St. 1874, p. 234.

An ordinance providing for the improvement was the foundation of the proceeding, and the passage of an ordinance could not be dispensed with. But it is contended that the evidence before the court established the existence of an ordinance, while, on the other hand, it is contended that the passage of an ordinance could only be established by the production of the journal containing the proceedings of the city council, and that the journal must show that the yeas and nays were taken, and that a majority of the members-elect voted for the ordinance on the call of the yeas and nays. This last position is predicated on section 13 of article 3 of the city and village act, which declares:

‘The yeas and nays shall be taken upon the passage of all ordinances * * * which shall be entered on the journal of its proceedings, and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition.’ Rev. St. 1874, p. 215.

If this was the only provision of the statute relating to the passage or proof of the passage of ordinances there would be much force in the position of appellant. But such is not the case. Section 4 of article 5 of the same statute provides:

‘All ordinances and the date of publication thereof, may be proven by...