Lockwood & Strickland Co. v. City of Chicago
| Decision Date | 04 October 1917 |
| Docket Number | No. 11382.,11382. |
| Citation | 117 N.E. 81,279 Ill. 445 |
| Court | Illinois Supreme Court |
| Parties | LOCKWOOD & STRICKLAND CO. v. CITY OF CHICAGO. |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; William F. Cooper, Judge.
Assumpsit by the Lockwood & Strickland Company against the City of Chicago. Judgment for defendant in superior court of Cook county, and plaintiff appealed to Appellate Court, where judgment was affirmed, and plaintiff appeals, certificate of importance having been granted by Appellate Court. Reversed and remanded, with directions.Winters, Price & Stevens, of Chicago, and George W. Underwood and Julian Clay Risk, both of Chicago (George M. Stevens, of Chicago, of counsel), for appellant.
Samuel A. Ettelson, Corporation Counsel, of Chicago (Donald P. Vail and Chester E. Cleveland, both of Chicago, of counsel), for appellee.
Appellant, the Lockwood & Strickland Company, a corporation, filed its declaration in assumpsit in the superior court of Cook county against the city of Chicago to recover $2,694 paid by appellant to appellee under the terms of an ordinance of said city passed June 27, 1910. The ordinance was set out in the declaration. A demurrer to the declaration was sustained, and, appellant electing to stand by its declaration, judgment for costs was entered against it. On appeal to the Appellate Court for the First District, the judgment was affirmed, and the case has been brought to this court for review by appeal; a certificate of importance having been granted by the Appellate Court.
The ordinance was in three sections, and such parts thereof as are necessary to an understanding of this case are as follows: Section 1 provided that:
A certain alley described be ‘vacated and closed, inasmuch as said portion of said alley is no longer needed by the general public for use as an alley and the public interest will be subserved by the vacation thereof.’
Section 2 provided:
‘The vacation herein provided for is made upon the express condition that Lockwood & Strickland Company a corporation, shall within sixty (60) days after the passage of this ordinance pay to the city of Chicago the sum of twenty-six hundred ninety-four ($2,694) dollars toward a fund for the payment of any and all damages which may arise from the vacation of said alley.’
Section 3 is as follows:
‘This ordinance shall take effect and be in force from and after its passage: Provided, however, that the said Lockwood & Strickland Company shall within sixty (60) days of the date of the passage thereof file for record in the office of the recorder of deeds of Cook county, Illinois, a certified copy of this ordinance.’
The declaration alleges appellant complied with the provisions of the ordinance by paying said sum of $2,694 to appellee and by having a copy of said ordinance recorded within the time specified therein. The declaration further alleges such payment to the city was made in the nature of a deposit to indemnify the appellee city against any damages which might be recovered against it by private persons for damages resulting to property by reason of the vacation of said alley; that no damages had been paid by said city by reason of said vacation, and no suits had been brought against appellee by reason of said vacation within five years from the date when the ordinance became effective; and that by reason of said facts the appellee city was liable to refund to appellant the amount of money so deposited with it, which upon demand it has refused to do.
The question here involved is the construction to be given the ordinance in question. The validity of the ordinance is not attacked. It was the view of the trial and Appellate Courts, and it is the contention of appellee, that such ordinance was not a contract between the city and appellant whereby appellant deposited the money to indemnify the city against damages which the closing of said alley might cause private property. Appellee insists that by the terms of the ordinance the city agreed to, and did, vacate the alley in favor of the appellant for the consideration of $2,694, and that appellant is not entitled to recover same.
A city may, in the lawful exercise of its discretion, vacate a street or alley, in which instance...
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