McChesney v. Village of Hyde Park

• Decision Date: 19 June 1894
• Citation: 37 N.E. 858,151 Ill. 634
• Parties: McCHESNEY et al. v. VILLAGE OF HYDE PARK (two cases).
• Court: Illinois Supreme Court

151 Ill. 634

37 N.E. 858

McCHESNEY et al.

v.VILLAGE OF HYDE PARK (two cases).¹

Supreme Court of Illinois.

June 19, 1894.

Two petitions by the Village of Hyde Park for confirmation of special assessments. Alfred B. McChesney and others filed objections, which were overruled, and the assessments confirmed. Objectors appeal. Modified.

On rehearing. For former opinion, see 28 N. E. 1102.

BAKER, C. J.

On March 27, 1888, a petition was filed by the village of Hyde Park, in the county court of Cook county, in a special assessment proceeding. The assessment was based upon an ordinance of the village of Hyde Park, passed on November 7, 1887, for the cost of constructing a certain sewer and erecting pumping works for drainage purposes. After the coming in of the assessment roll, A. B. McChesney et al. filed objections to the confirmation of the assessments as to their respective lands. Upon a hearing, A. B. McChesney et al. failed to sustain their objections, and a judgment of confirmation was entered. Thereupon, said A. B. McChesney et al. appealed to this court, and filed here a transcript of the record. On July 13, 1889, another petition was filed by said village in said county court, in another assessment proceeding. The assessment in said latter proceeding was based on another and different ordinance,-an ordinance passed by the village on May 24, 1889,-for an assessment to be made for the maintenance and operation of the aforesaid pumping works and drainage system. Upon the filing of the assessment roll in this latter proceeding, said A. B. McChesney et al. filed objections to the confirmation of the assessment as to their respective lands. They also failed to sustain their objections in this latter proceeding, and the court rendered a judgment of confirmation. A. B. McChesney et al. then took an appeal from this latter judgment, and a transacript of the record in this latter proceeding was thereupon filed in this court. A third transcript of record was also filed in this court, containing a bill of exceptions, from which it appears that by agreement and stipulation of parties the two cases mentioned above were tried together, and further appears that by agreement of parties the exceptions taken in both cases might be shown in both cases in one bill of exceptions, as the cases were tried together by consent. The two cases were submitted to this court as one case, and an opinion filed which affirmed both judgments. Thereafter, upon petition of appellants, a rehearing was ordered.

In respect to the first case, which was predicated upon the ordinance of November 7, 1887, we readopt and adhere to what was said in the opinion filed prior to the rehearing. That opinion, omitting only the matters having reference to the second case, which was based on the ordinance of May 24, 1889, was as follows: ‘In the first case the village of Hyde Park, on March 27, 1888, filed its petition in said county court, setting up that on November 7, 1887, the president and board of trustees of the village passed an ordinance for the assessment of the cost of constructing a sewer in Sixty-Third street, and the erection of pumping works for drainage purposes, together with an outlet pipe (a certified copy of the ordinance, and of the approval thereof by said president, being annexed to and made a part of the petition); that the commissioners appointed to make an estimate of the cost of ‘the improvement contemplated by the ordinance’ made a report on December 5, 1887, estimating such cost at $85,000 (a true copy of the report, and of the order of said president and board affirming the same, being annexed to and made a part of the petition); that theretofore, on December 1, 1887, the village filed in said court its petition for the ascertainment of the just compensation to be made for private property to be taken or damaged for the purpose specified in the ordinance, to wit, lots 1, 2, 3, and 4 in block 4, O. A. Bogue's subdivision, etc.; that on the same day said court rendered judgment, fixing $3,300 as the amount of such compensation and damages. And the prayer of said petition was that an assessment be made to raise said sum of $85,000 (which included the $3,300, and all the other costs of said improvement), together with the costs of the proceeding, and that commissioners be appointed to make the said assessment, etc. The ordinance referred to in the petition is entitled ‘An ordinance providing for the construction of a sewer on 63rd street and the erection of pumping works for drainage purposes together with an outlet pipe.’ Its first section provides for the construction of a brick sewer along the center of the alley lying west of and adjoining the west line of the Illinois Central Railroad Company's right of way in said block 4 from a point 195 feet north of the center line of Sixty-Third street to a point ten feet north of the center of Sixty-Third street; for the construction of a shaft or manhole at each end of said sewer; for the construction of a brick sewer, connected with said shaft, ten feet north of the center of Sixty-Third street, and running thence eastward along the center line of Sixty-Third street to a point ten feet west of the center of Stony Island avenue; for the construction of a continuous brick and tile pipe sewer extending westward from said shafts to a point ten feet east of the center of Cottage Grove avenue; for the construction of 46 manholes in said sewer, along Sixty-Third street, at the points indicated on a certain plat, and of house connection slants on each side of said sewer opposite every lot fronting on 63d street, on both sides thereof, etc.; for the construction of a well on said lots 1, 2, 3, and 4, a cast-iron pipe to be laid from said well to connect with the chimney on said lots, so as to ventilate said well, and said well to be connected with the sewer in said alley by a connecting sewer, etc. The second section of the ordinance provided for the erection of pumping works on said lots, consisting of a brick building, with coal shed, engine room, boiler room, three pumping engines, and other appliances for the operation of the engines, and a brick chimney 50 feet in height, etc.; two steam boilers, etc. The third section provides for constructing and laying a cast-iron outlet pipe, connecting with said pumps, across said lots to said alley, thence along the center line of said alley, and across said right of way, along a certain route to Lake Michigan. The fourth section ordains that the territory between the center lines of Sixtieth and Sixty-Seventh streets on the north and south, and between the center lines of Stoney Island avenue and Cottage Grove avenue on the east and west, be declared a drainage district for the purpose of the aforesaid improvement. The fifth section provides that the cost and expense of said improvement shall be defrayed by a special assessment to be made in accordance with sections 18 to 51, inclusive, in article 9 of the city and village act. Section six appoints three commissioners ‘to make an estimate of the cost of the improvement contemplated by this ordinance, including labor, materials and all other expenses attending the same, and the cost of making and levying the assessment,’ etc. Section 7 provides that said lots be condemned and appropriated for the erection thereon of pumping works for drainage purposes for the above-bounded territory in said village. Section 8 provides that the expense and cost of taking said property for said purposes be defrayed wholly by special assessment to be made in accordance with said article 9. Section 9 directs the filing of the petition above set forth in the county court. The county court appointed commissioners to make the assessment. The commissioners were sworn, and made their assessment roll, and returned it into court. The appellants, as owners of two lots of 10 acres each, filed objections to the confirmation of the assessment. The objections were overruled, except those averring that the property of objectors was assessed more than it would be benefited by the improvement. The latter objections were submitted to a jury, who found that said property would not be assessed more or less than it was benefited by the improvement, nor more or less than its proportionate share of the cost thereof. A motion for a new trial was overruled, and judgment rendered confirming the assessment. * * *'

The objection most strenuously urged upon our attention by counsel for appellants is that the act of June 22, 1885, ‘To vest the corporate authorities of cities and villages with power to construct, maintain and keep in repair drains, ditches, levees, dykes, and pumping works for drainage purposes, by special assessment upon the property benefited thereby,’ is unconstitutional. The improvement above named, and the special assessments for the purpose of defraying the costs and expenses of such improvements, are made under said act of 1885. The constitutionality of that act was fully considered in Village of Hyde Park v. Spencer, 118 Ill. 446, 8 N. E. 846. We there held the act to be valid, and see no reason now for retreating from the conclusion there reached. The ordinance of November 7, 1887, now under consideration, contains provisions similar to those which were sustained in the ordinance in the Spencer Case, and is free from those defects which were condemned in the ordinance in the Spencer Case. The foregoing ordinance of November 7, 1887, as to some of its features, was under review by this court in Pearce v. Village of Hyde Park, 126 Ill. 287, 18 N. E. 824, where it was held that the objections urged in that case against the validity of said ordinance were not tenable. An ordinance of a similar character was also sustained by this court in Drexel v. Town of Lake, 127 Ill. 54, 20 N. E. 38. We are of the opinion that the county court committed no error in overruling such objections to the confirmation of the...