Lusk v. City of Chicago

• Decision Date: 23 June 1904
• Citation: 71 N.E. 878,211 Ill. 183
• Parties: LUSK et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

211 Ill. 183

71 N.E. 878

LUSK et al.

v.CITY OF CHICAGO. ^*

Supreme Court of Illinois.

June 23, 1904.

Appeal from Cook County Court; F. W. Skonkwiller, Judge.

Proceedings by the city of Chicago for confirmation of a special assessment for a street improvement, in which Charles D. Lusk and others filed objections. From a judgment of confirmation, objectors appeal. Affirmed.

F. W. Becker, for appellants.

William M. Pindell and Edgar Bronson Tolman, Corp. Counsel (Robert Redfield, or counsel), for appellee.

RICKS, C. J.

This is an appeal from a judgment of confirmation entered by the county court of Cook county in a proceeding brought by the city of Chicago to pay the unpaid balance of the cost of improving Bonney avenue from Ogden avenue to Douglas Boulevard.

This case is known as the original ‘FlatStone Case,’ being the first of many cases passed upon by this court where it was held that an ordinance for paving and curbing a street, which merely stated that the curbstones of the street about to be paved should be bedded on flat stones, without giving the dimensions of the flat stones or other details by which the size and number of such stones could be determined, was not a compliance with the statutory requirement that the ordinance should describe the ‘nature and character’ of the improvement. 176 Ill. 207, 52 N. E. 54. For this defect in the ordinance, on the objection and appeal of the present appellants, the case was reversed and the cause remanded. When the case was redocketed in the county court, appellants, by leave of court, filed additional objections, inter alia, that the original ordinance was void as tending to creat a monopoly in the provision relating to the character of the cementing material or asphaltum to be used, to wit, ‘a paving cement prepared from pure Trinidad asphaltum, obtained from the pitch or asphaltum lake in the island of Trinidad.’ A hearing was had upon the objections, and evidence was introduced by appellants that the said Pitch Lake, in the island of Trinidad, referred to in said ordinance, was, when said ordinance was passed and at the time of said hearing, a private property and under the absolute control of the Barber Asphalt Company, a private corporation having its principal office in the city of Chicago; that there were at least five other corporations having offices in the city of Chicago engaged in the business of selling, for street paving, asphaltum procured in the island of Trinidad and elsewhere, but not from Pitch Lake in said island, which asphaltum was the equal, for street-paving purposes, of the asphaltum obtained from said Pitch Lake, and that all of said companies and the Barber Company were competitors in the business of supplying asphaltum for paving purposes in Chicago. These objections were sustained and the petition dismissed, and no appeal from the order dismissing the petition was prosecuted by the city.

On December 24, 1901, a petition for a new assessment to pay the unpaid balance of the cost of said improvement, based on a new ordinance passed December 16, 1901, to cover said deficiency, was filed. Appellants filed objections to that proceeding that the original proceedings were pending when the act of 1897, in relation to local improvements, went into effect, and therefore the new assessment proceeding should have been instituted and carried on under the act of 1872, instead of the act of 1897, under which said proceeding was instituted and carried on; and the further objecton that the original ordinance was void because it tended to created a monopoly in the clause relating to asphalt from Pitch Lake, in the island of Trinidad. Upon the hearing, evidence in support of these objections was introduced, and the court, after hearing the cause, entered an order sustaining the objections and dismissing the petition. This latter order was not appealed from.

On September 22, 1903, the city filed another petition (the one now involved) for a new assessment to pay the unpaid balance of the cost of said improvement, based on a new ordinance passed July 20, 1903. This latter ordinance recited the passage of said original ordinance on the 6th day of February, 1903; the estimated cost of said improvement ($39,737.47); the entry of the judgment of confirmation by the lower court; the fact that a contract was duly let for the making of the said improvement, and that the contractor duly executed the same, and that the work of constructing and making said improvement was done in good faith, and was in compliance with the said ordinance and contract, and was thereafter duly accepted by the city of Chicago; the actual cost of the improvement ($39,620.72), exclusive of the cost of the former assessment proceeding; the issuance of interest-bearing vouchers and improvement bonds to the contractor in payment for the said work; the order of reversal entered by this court; the filing of the supplemental petition on the 21st of September, 1901, and the order of court dismissing the same because not brought under the act of 1872; the fact that certain property owners had already paid all or part of their respective assessments, and that it is just and equitable that a new assessment should be levied for the unpaid balance of the cost of said improvement upon the lots, pieces, and parcels of land benefited by the said improvement as to which the original judgment of confirmation had been set aside by order of court, as aforesaid, and should be so spread that each of said lots, pieces, and parcels of land should be charged with its proportionate share of the actual cost of the said improvement, not in excess, however, of the amount it is specially benefited by the construction of said improvement, and that due regard should be given to whatever payments have been made by the owner or owners of said property.

Section 1 of said ordinance annulled the former assessment, and directed the corporation counsel of the city of Chicago to procure the vacation of said orders of confirmation. Section 2 provided that a new special assessment be made and levied, as hereinafter specified, for the amount remaining due and unpaid for the work already done in good faith under said original ordinance. Section 3 provided that the unpaid balance of the cost of said improvement constructed under said original ordinance and under said contract, which, in the ordinance, is found to be $9,574.67, be paid for by special assessment, to be levied upon the property specially benefited thereby, to the amount that the same may be legally assessed therefor, the remainder of said cost to be paid by general taxation, in accordance with the statute in such case made and provided. Section 4 provided that the special assessment provided for in that ordinance should be payable and collectible...