Murphy v. City of Peoria

• Court: Illinois Supreme Court
• Writing for the Court: CRAIG
• Citation: Murphy v. City of Peoria, 119 Ill. 509, 9 N.E. 895 (Ill. 1887)
• Decision Date: 25 January 1887
• Parties: MURPHY and others v. CITY OF PEORIA.

119 Ill. 509

9 N.E. 895

MURPHY and others

v.CITY OF PEORIA.

Supreme Court of Illinois.

January 25, 1887.

Error to county court, Peoria.

Jack & Tichenor and McCulloch & McCulloch, for plaintiffs in error.

J. C. Pinckney, City Atty., ( H. W. Wells, of counsel,) for defendant in error.

CRAIG, J.

This is a writ of error brought by plaintiffs in error to reverse a judgment of the county court of Peoria county confirming a special assessment for the improvement of Hamilton street, in the city of Peoria. The ordinance under which the improvement is proposed to be made provides that the street shall be graded and graveled; that 24 feet in width in the center of the street shall be graded and sodded with good sod; that a sewer shall be constructed in said street of 18-inch vitrified pipe. It is urged that the action of the city council was in violation of its delegated powers- First, in attempting to levy a special assessment for grading and sodding a park in the middle of the street; second, in attempting to levy a special assessment for the construction of a sewer, the charter providing taxation by districts for that purpose; third, in uniting in one assessment the cost of several improvements which in their nature cannot be united.

As to the first objection, it will be necessary to refer to some of the provisions of the charter of the city. Under section 1, c. 6, of the charter, (2 Priv. Laws 1869, p. 136,) the city council has power to lay out public streets, alleys, lanes, avenues, and highways, and extend, alter, widen, contract, straighten, and discontinue the same, to purchase, lay out public parks, and squares or grounds; third, to cause any street, alley, lane, avenue, or highway to be filled, leveled, graded, paved, curbed, walled, graveled, macadamized, or planked, and keep the same in repair; fourth, to cause cross and side walks, main drains, and sewers, * * * and private drains to be constructed and laid; fifth, to fill, grade, improve, protect, and ornament any public square. Section 2 provides: ‘The expenses of any improvement mentioned in the section (1) shall be defrayed, save as herein otherwise provided, by a special assessment upon the real estate benefited thereby.’ In addition to the foregoing, under section 7, c. 4, of the charter, the city council has power to control, regulate, repair, and amend the streets; also to open and vacate; to establish and alter the grade.

It is obvious from these various provisions that the control of the streets, and the power to improve, is placed in the hands of the city council, and in the exercise of these powers the manner of the improvement must, of necessity, to a large extent, be left to the discretion of that body. It is true that the charter does not, in express words, declare that the city council may grade and sod a portion of the street, but we think it is manifest that such power is included under the general authority to control and improve conferred on the city council by the charter. Where a street is of such a width that the entire street is not needed for the public travel, and the city council deem it wise to sod a portion thereof, instead of graveling the entire street, we see no good reason why they may not properly, under the general power to control and improve, adopt that method of improvement.

As to the second objection. Under clause 4 of section 1, supra, the city council has power to construct sewers, and under section 2 the expenses may be defrayed by special assessment. If, however, there was any doubt in regard to the authority under the special charter, the city of Peoria adopted article 9 of the act in relation to cities, villages, and towns; and under this article there can be no question as to the power to construct sewers by special assessment.

As to the third objection, that three distinct improvements are united in one, we do not regard the point as well taken. It is true that the ordinance provided for graveling the road, sodding the center of the street, and a sewer under the street, but we do not regard these as separate and distinct improvements, as was that in Weckler v. Chicago, 61 Ill. 142, but the three things required to be done are but constituent parts of one improvement. The three elements required, when all united, made the improved street contemplated by the ordinance. A projected improvement may often contain several elements, but when they are all united they constitute a single whole,-one improvement. Such is the case here. The improvement consisted of three elements, but, when the work is all done, there is but a single improvement.

It is next urged that the appointment of commissioners is void, because made at a probate term of the court. This...