People ex rel. Tilden v. Massieon
| Decision Date | 21 June 1917 |
| Docket Number | No. 11384.,11384. |
| Citation | 116 N.E. 639,279 Ill. 312 |
| Parties | PEOPLE ex rel. TILDEN v. MASSIEON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.
Mandamus by the People, on the relation of Nancy S. Tilden, against J. J. Massieon and others. Judgment for complainant, and defendants appeal on a certificate of importance. Affirmed.
See, also, 200 Ill. App. 86.
Charles W. Helmig, of Peru, for appellants.
Hoberg & Hoberg, of Peru, and McDougall & Chapman, of Ottawa, for appellee.
Nancy S. Tilden filed a petition in the circuit court of La Salle county against the mayor and city counsel of the city of Peru for a writ of mandamus requiring them to approve a plat of a subdivision of a tract of land within the corporate limits of the city which she had caused to be made, to be called Tilden's addition to Peru. A demurrer to the petition having been overruled, the respondents elected to stand by the demurrer, and a judgment was rendered against them awarding a peremptory writ of mandamus,from which they appealed to the Appellate Court, where the judgment was affirmed, and they were granted a certificate of importance and a further appeal to this court.
Chapter 109 of the Revised Statutes authorizes the owner of lands wishing to subdivide them for the purpose of making an addition to a city to cause them to be surveyed and a plat to be made of them, which, together with the certificate of the surveyor and the acknowledgment of the owner, shall be recorded in the recorder's office of the county in which the land is situated. The selling or offering for sale of any lot or block in any city without complying with these requirements is prohibited under penalty of a fine of $25 for each lot so sold or offered for sale, and by section 5 of the chapter it is declared to be unlawful for the recorder to record any plat of land situated in any city until it shall have been approved by the legislative authority of the city in which the land is situated or by some city officer designated by resolution or ordinance. Section 5 of article 10 of the Cities and Villages Act (Hurd's Rev. St. 1915-16, c. 24, § 173) provides that the city council may by ordinance provide that any such plat shall be submitted to the city council or some officer designated by the council for approval, and in such case no such plat shall be entitled to record or have any validity until it shall have been so approved. The petition averred that the city council of the city of Peru had never passed any ordinance in accordance with the authority conferred by the statute; that the petitioner was the owner of certain described real estate which had been within the corporate limits of the city for many years; that she had caused it to be platted into lots, blocks, streets, and alleys as an addition adjoining the platted part of the city, to be called Tilden's addition to Peru; that on January 9, 1914, she presented the plat to the city council for approval, but the council refused to approve the plat. A copy of the plat was attached to and filed with the petition for mandamus.
Where the provisions of the statutes and the ordinances of the city have been complied with in the making of a plat for an addition to the city, the duty of the council to approve the plat is ministerial and may be enforced by mandamus. 26 Cyc. 250.
The right to subdivide real estate within a city and to dispose of it in lots, with reference to streets, alleys, and other public grounds, affects the value of the property very materially. In the absence of any statute on the subject, the owner of land might subdivide it in any way he saw fit, having regard only to his own wishes and without regard to public convenience. The Legislature has seen fit to confer upon city councils the right to regulate the subdivisions of property within the corporate limits by requiring the approval of the plats of such subdivisions by the legislative authority of the municipality which has jurisdiction over the streets, alleys, and public grounds. The city council may by ordinance require every such plat to be submitted to the council itself for approval or it may authorize the approval by some designated officer of the city. To this extent the right of the owner to have the plat of the subdivision of his land recorded and to sell his land with reference to such plat is limited, but no farther. There is no absolute discretion in the city council as to the approval of a plat. It may by ordinance, no doubt, regulate the direction and width of the streets and alleys and the location of public grounds and require conformity with existing subdivisions, streets, and alleys, but such regulation must be by a general ordinance applying to all alike. The city council cannot, by failing to pass any ordinance, reserve to itself arbitrary discretion to approve plats or not to approve them. Where the city has not passed any ordinance on the subject, the only requirements to which the owner is obliged to conform are those of the statute. No discretion is vested in the city council to refuse approval of a plat which conforms to the statute and does not fail to conform to the provisions of any ordinance.
The statute provides that the acknowledgment and recording of the plat shall be...
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