Nelson v. City of Chicago

• Decision Date: 16 April 1902
• Citation: 63 N.E. 738,196 Ill. 390
• Parties: NELSON et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

196 Ill. 390

63 N.E. 738

NELSON et al.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

April 16, 1902.

Appeal from Cook county court; Geo. H. Ingham, Judge.

Proceeding by the city of Chicago to assess the property of Murry Nelson and others for the cost of improvements to a street. From a judgment confirming the assessment, the property owners appeal. Reversed.Mason & Noyes, for appellants.

Edgar Bronson Tolman, Robert Redfield, and Charles M. Walker, Corp. Counsel, for appellee.

CARTER, J.

This is an appeal from a judgment of the county court of Cook county confirming a special assessment against the lands of appellants for the improvement of Archer avenue, in the city of Chicago, from the center line of South Ashland avenue to the east line of Western avenue boulevard, by curbing the same with granite concrete combined curb and gutter and grading and paving the street with asphalt on six inches of artificial hydraulic cement concrete.

It appears that the city council of Chicago, at the same session, passed three ordinances for improving Archer avenue a distance of about four miles. These ordinances each provide for the same kind of an improvement, the first one being for the improvement of Archer avenue from State street to Stewart avenue, at a total estimated cost of $36,000; the second, from Stewart avenue to Ashland avenue, at an estimated cost of $98,500; and the third, from Ashland avenue to Western avenue boulevard, at an estimated cost of $72,000, the latter being the ordinance now before us. The cost of these three improvements, or of any two of them, exceeds $100,000. It is contended for appellants that this was an attempt of the city council to evade the provisions of section 11 of the act of 1897 in regard to local improvements, which is as follows: ‘Upon the presentation to the common council or board of trustees of such proposed ordinance, together with such recommendation and estimate, if the said estimate of cost shall exceed the sum of one hundred thousand dollars ($100,000), (exclusive of the amount to be paid for land to be taken or damaged,) such ordinance shall be referred to the proper committee and published in the proceedings of the council or board of trustees, in the usual way, in full, with the recommendation and estimates, at least one week before any action shall be taken thereon by the council or board of trustees.’ Hurd's Rev. St. 1889, p. 364. None of these ordinances was referred to a committer or published, as provided in the above section, but all were passed by the council on the evening of the same day they were presented by the board of local improvements.

Appellants insist that the dividing up of the improvement of Archer avenue into three sections shows on the face of it that it was done to evade the provisions of the statute above quoted. It is said that all the facts and circumstances show that these three ordinances, passed as they were, should be read and construed together as one entire scheme. On the hearing of this objection in the court below, the court, on its own motion, called as a witness the superintendent of special assessments and inquiredinto the reasons of the board of local improvements for thus dividing the improvement of Archer avenue into sections. His answer was that the public benefits in the different portions of the street were different, amounting to 40 or 42 per cent. in the first section, and to about 15 per cent. in the other two sections. On being asked why the part on which the public benefit was 15 per cent. was divided into two sections, he answered that this simply happened so in the usual course of doing...