People ex rel. Raymond v. Latham

• Decision Date: 09 June 1903
• Citation: 203 Ill. 9,67 N.E. 403
• Parties: PEOPLE ex rel. RAYMOND, County Treasurer, v. LATHAM et al.
• Court: Illinois Supreme Court

203 Ill. 9

67 N.E. 403

PEOPLE ex rel. RAYMOND, County Treasurer,

v.LATHAM et al.

Supreme Court of Illinois.

June 9, 1903.

Appeal from Cook County Court; O. N. Carter, Judge.

Application by the people, on the relation of S. B. Raymond, county treasurer, for an order for the sale of certain property for a delinquent special assessment. Carl R. Latham, as executor, and others, filed objections. From a judgment sustaining such objections, relator appeals. Affirmed.J. L. McKittrick and George Gillette, for appellant.

Alden, Latham & Young, Pierson & Pease, and Geo. W. Wilbur, for appellees.

This is an appeal from a judgment of the county court of Cook county sustaining objections filed by appellees, and refusing judgment of sale at the July term, 1902, of said court in the matter of the application of Samuel B. Raymond, county treasurer, and ex officio county collector of Cook county, for judgment against delinquent lands and lots for special tax No. 04, levied and assessed by authority of the village of Wilmette for the construction of a concrete sidewalk in accordance with the provisions of an ordinance entitled ‘An ordinance providing for the construction of a concrete sidewalk on North avenue, and other streets, in the village of Wilmette, Cook county, Illinois,’ passed by the president and board of trustees of said village July 17, 1900.

Section 1 of the ordinance provides for the construction and laying down of a concrete sidewalk in front of certain lots in certain blocks in different additions and subdivisions upon and along some 25 different streets in the village of Wilmette. Section 1 also provides that said sidewalk shall be 5 feet 4 inches in width, and the upper surface thereof, when completed, shall have a slope of one-quarter of an inch to the foot towards the center of the street or avenue on which such sidewalk is laid; that the inside line or edge of such sidewalk, when completed, shall be of a distance of 30 inches from the lot or lots on which such sidewalk abuts on all streets or avenues exceeding 66 feet in width, and at a distance of 20 inches from the lot or lots on which such sidewalk abuts on all streets or avenues 66 feet or less in width; that the top of said sidewalk nearest to the lot line shall, when completed, be 6 inches above the grade provided for such streets or avenues by the general ordinances of said village; that said sidewalk shall have a sand foundation 6 inches deep, thoroughly compacted and leveled by ramming or other process, so that the concrete work laid on same shall have a clear thickness of 4 inches throughout the entire walk; that the concrete shall be spread over the sand foundation in an even layer 3 1/2 inches thick, etc.; that the surface or finishing layer of said concrete walk shall be one-half inch in thickness, etc.; that said sidewalk shall be laid in sections or blocks not to exceed 5 feet, runway length; provided that the owner of any lot or piece of ground fronting on said sidewalk shall be allowed 30 days after the ordinance shall have been published in which to construct such sidewalk alongside of his lot or piece of ground, and thereby relieve the same from the special tax therein provided to be levied thereon for the construction of the sidewalk; and that such materials and construction shall be under the supervision and subject to the approval of the superintendent of public works.

Section 2 of the ordinance provides that so much of the improvement as shall not be made by the owners within the time aforesaid shall be made, and the cost thereof be wholly paid for, by special taxation of the lot, lots, or parcels of land contiguous to the proposed sidewalk, by levying the whole of the cost thereof upon such lots in proportion to their respective frontage on said proposed sidewalk.

Section 3 provides that a bill of the cost of said sidewalk, showing in separate items the cost of grading, materials, laying down, and supervision, shall be filed in the office of the village clerk, certified to by the superintendent of public works, together with a list of the lots and parcels of land touching upon the line of said sidewalk, the names of the owners thereof, and the frontage as well; that the village clerk shall prepare a special tax list against such lots or parcels of land and the owners thereof, ascertaining by computation the amount of special tax to be charged against each of said lots or parcels, and the owners thereof, on account of the construction of said walk, in proportion to the frontage of each of said lots on said sidewalk, which special tax list the clerk shall place on file in his office; that the village clerk shall thereupon issue warrants to the village collector for the collection of the amount of special tax, etc.

The objections made by the appellees to the entry of judgment against their lands were, in substance, as follows: That the ordinance for the cement sidewalk in question was not legally passed; that said ordinance is void; that said sidewalk was not built in the manner or at the grade provided in said ordinance; that said walk was not built by the village, but was built under a contract let by the village at so much per running foot; that said ordinance is unreasonable and oppressive, in that it required the construction of a new sidewalk in front of the property of objectors where the sidewalks already laid in front of such property were safe, durable, and in good repair; that no proper bill of cost was made by said village; that the property of objectors was not benefited by the construction of such sidewalk; that the delinquent list was not filed with the county treasurer on or before April 1, 1901; that the special tax list prepared by the village clerk is not in compliance with the law; that the ordinance provides for a double improvement; that all of the sidewalk provided for in said ordinance has not been built; that the bill of cost was not made out in the manner required by law.

MAGRUDER, C. J. (after stating the facts).

Many objections were filed by the appellees to the entry of judgment against their lands upon the trial in the court below. It is impossible, nor is it necessary, for us to notice all of these objections. It is sufficient to refer to two of them, which, in our opinion, were properly sustained by the trial court, and justify its action in refusing judgment of sale against the property of the appellees.

1. The main objection made by the appellees, and which strikes at the validity of the ordinance under which the improvement in question was to be constructed, is that the ordinance provided for a double improvement. The ordinance provides for the laying of more than 40 separate and disconnected sidewalks, located on some 25 different streets in the village of Wilmette, and in diverse and widely separated parts of the village, where the physical conditions are dissimilar. It provides for the laying of somewhere in the neighborhood of seven miles of cement sidewalk in the village. A map, introduced in evidence, showing in detail where the walks were to be laid, discloses that the various pieces of sidewalk are disconnected, and at long distances from each other. Some of the pieces of sidewalk whose construction is provided for were a mile and a half apart, and some of them lay west of the tracks of the Northwestern Railroad Company, while others lay east of those tracks. Some of the sidewalks to be constructed were ordered to be laid on improved streets to replace plank sidewalks. Some were to be laid on improved streets where no sidewalks had previously been built. Others were to be laid on unimproved streets, where there were underbrush and trees upon the line of the proposed sidewalk. On one of the streets along which sidewalks were ordered to be laid by the ordinance it was necessary to fill in a ditch, some 6 feet deep, and from 10 to 12 feet wide at the top; the sidewalk, under the terms of the ordinance, being required to be built where the ditch had previously existed. In some places filling was required to be done, and in others excavation was necessary. The evidence shows that there was little or no communication between residents upon certain streets in one neighborhood where sidewalks were ordered to be laid and the residents upon other streets in another neighborhood where sidewalks were ordered to be laid; in other words, that by the terms of the ordinance sidewalks were to be laid in separate neighborhoods. It thus appears that in this proceeding different streets have been combined in the same ordinance, which are so separate and disconnected that the laying of sidewalks on some of such streets cannot be said to in any way benefit the property situated upon other of such streets.

The ordinance, under which the improvement here in question was to be made, was passed in pursuance of the sidewalk act of April 15, 1875, p. 63, entitled ‘An act to provide additional means for the construction of sidewalks in cities, towns and villages.’ The question arises whether the construction of a number of sidewalks upon different streets under the conditions above set forth can be accomplished under one and the same ordinance. The answer to this question depends upon the construction of the sidewalk act of 1875, and the intention of the legislature upon the subject, as disclosed by the terms of that act.

Section 1, p. 63, of the act of April 15, 1875, provides as follows: ‘That in addition to the mode now authorized by law, and city or incorporated town or village may by ordinance provide for the construction of sidewalks therein, or along or upon any street or part of street therein, and may, by such ordinance, provide for the payment of the whole or any part of the cost thereof by special taxation of the lot, lots or parcels of land touching upon the line where any such sidewalk is ordered, and such special taxation may be either by a levy on any lot of the whole, or any part of...