Merchants' Loan & Trust Co. v. City of Chicago

• Decision Date: 16 June 1914
• Docket Number: No. 9387.,9387.
• Citation: 105 N.E. 726,264 Ill. 76
• Court: Illinois Supreme Court
• Parties: MERCHANTS' LOAN & TRUST CO. v. CITY OF CHICAGO.

264 Ill. 76

105 N.E. 726

MERCHANTS' LOAN & TRUST CO.

v.CITY OF CHICAGO.

No. 9387.

Supreme Court of Illinois.

June 16, 1914.

Error to Appellate Court, First District, on Error to Circuit Court, Cook County; Dean Franklin, Judge.

Action by the Merchants' Loan & Trust Company against the City of Chicago. A judgment for plaintiff was affirmed by the Appellate Court (182 Ill. App. 298), and defendant brings error. Affirmed.Wm. H. Sexton, Corporation Counsel, and Nicholas Michels, both of Chicago (A. L. Gettys, of Chicago, of counsel), for plaintiff in error.

Harrison Musgrave, Wm. S. Oppenheim, and John H. S. Lee, all of Chicago, for defendant in error.

CARTER, J.

This was a suit brought by the Merchants' Loan & Trust Company, as executor of the estate of Lambert Tree, deceased, in the circuit court of Cook county, against the city of Chicago, to recover $2,761.73, and interest thereon at 5 per cent. from July 25, 1897. On the trial, jury being waived, judgment was entered against the city for $4,908.96. The case was taken to the Appellate Court by writ of error, where the judgment was affirmed, and has been brought here by petition for certiorari.

The judgment was based on the following instrument in writing:

‘City of Chicago,

‘Department of Public Works,

‘Bureau of Engineering.

‘July 25, 1895.

‘It is hereby certified that Lambert Tree has advanced the sum of twenty-seven hundred and sixty-one and 73/100 dollars for the purpose of laying [certain described water pipe], which amount will be refunded to him (without interest if so refunded within two years from the date hereof, but with interest, at the rate of five per cent. per annum from and after the expiration of said two years, if not so refunded within said two years), from any money belonging to the water tax fund in the city treasury not otherwise appropriated, whenever, upon a proper survey, it is shown that a revenue from frontage water rates of ten (10) cents per lineal front foot per annum is being derived from said pipe.

‘By order of the commissioner.

‘James J. Graham, Ass't Sec.

‘2,761.73.

L. B. Jackson, City Engineer.'

In 1891 the city of Chicago passed an ordinance authorizing the commissioner of public works to extend water mains when the property owners advanced the cost of the same, and that said money so advanced should be repaid from the surplus of the net income of the water rate. May 16, 1892, the city council passed the following ordinance:

‘Whereas there is an urgent demand from every section of the city for street improvements; and whereas it will be impossible to proceed with any of the streets now under assessment until proper provision is made for the extension of water mains; and whereas this council has recently authorized the issuance of water certificates amounting to $1,000,000 the proceeds of which were to be used in extending and improving the water system; and whereas it is of the utmost importance that no part of the proceeds of said certificates be used except for the extension of water mains in localities where the actual number of residents will warrant the outlay from a business standpoint; and whereas in the past it has been the practice to pass ordinances for street improvements in uninhabited subdivisions, which said ordinances were promptly repealed when the water pipe was laid; now, therefore,

‘Be it ordained by the city council of the city of Chicago:

‘Sec. 1. That whenever an ordinance is hereafter passed by this council for the filling, grading, curbing and paving of any street, it shall be the duty of the commissioner of public works to ascertain whether the street or streets on which such improvement is ordered contains a sufficient number of houses to pay a revenue to the city of ten (10) cents per lineal foot for every foot of water pipe laid on said street or streets, when, if such be the case, he shall at once proceed under the ordinance to lay the necessary water mains. If upon such examination it is ascertained that a revenue of ten (10) cents per lineal foot cannot be derived, the owners of property abutting on said street or streets shall be required to advance the money necessary to cover the cost of all pipe laid on every such street or streets. * * *

‘Sec. 2. The moneys advanced by owners of property for the laying of water mains, as provided in section 1, shall be returned by the city from moneys not otherwise appropriated, whenever, upon a proper survey, it is shown that a revenue of ten (10) cents per lineal foot is being derived therefrom: Provided, that if the moneys so advanced are not paid back within two years, that interest at the rate of five per cent. per annum shall be allowed after the expiration of two years until paid.’

In July, 1892, another ordinance was passed, which provided that, if any special assessments for the purpose of laying or extending any water main should be collected by the city of Chicago, the holder of the receipt therefor should be repaid said sum from the surplus of the net income from the water rates under certain conditions. In the Revised Code of Chicago for 1897, section 1669 on this subject reads:

‘The commissioner of public works may extend water mains where the owners of the property or persons desiring such extension shall advance and pay into the city treasury a sum of money equal to the entire cost thereof; and whenever, upon a proper survey, it is shown that a permanent annual revenue of ten cents per lineal foot is being derived from said water mains, then said money so advanced, as aforesaid, shall be repaid to the person or persons so advancing the same: Provided, however, if the money so advanced is not paid back within two years, interest at the rate of five per cent. per annum shall be allowed after the expiration of said two years until paid.’

The Code of the city of 1905 is substantially the same on this question as section 1669 above quoted, except that the rate of interest is 3 1/2 instead of 5 per cent. There has been no change in the ordinance applying to this question since that date.

The evidence introduced at the trial showed that Lambert Tree on July 25, 1895, advanced to the city of Chicago $2,761.73 for the purpose of laying water pipes in certain streets in said city; that in consideration of such loan said certificate of July 25, 1895, was given him; and that it has been continuously in his possession from that date until his death and since then in the hands of his executors. Proof was offered showing that it was the custom of the city of Chicago to pay water extension certificates like the one sued on, with 5 per cent. interest from two years after the date on those issued before 1905 and 3 1/2 per cent. on those issued since 1905.

[1][2] Counsel for the plaintiff in error concede that the city should pay the principal of such certificate but deny that it is liable for the amount of interest found by the trial court. They first contend that the ordinance means that the interest shall only begin to run from the date when it is shown by a proper certificate ‘that a revenue from frontage water rates of ten cents per lineal foot per annum is being derived from said pipe.’ No such construction can be put on the certificate given by the city to Lambert Tree, read by itself, for that says, ‘two years from the date hereof,’ which obviously means from the date of the certificate. The ordinance provides that:

‘If the moneys so advanced are not paid back within two years, that interest * * * shall be allowed after the expiration of two years until paid.’

The fundamental object in construing an ordinance or statute is to find the intention which the legislative body that passed it had as to its meaning. The plain and...