Pierson v. People ex rel. Walter

• Decision Date: 24 April 1903
• Citation: 204 Ill. 456,68 N.E. 383
• Parties: PIERSON v. PEOPLE ex rel. WALTER.
• Court: Illinois Supreme Court

204 Ill. 456

68 N.E. 383

PIERSON

v.PEOPLE ex rel. WALTER.

Supreme Court of Illinois.

April 24, 1903.

Appeal from Bureau County Court; R. M. Skinner, Judge.

Action by the people, on relation of J. F. Walter, against Elizabeth Pierson. From a judgment in favor of relator, defendant appeals. Affirmed.

This is an appeal from a judgment of the county court of Bureau county against certain lots belonging to the appellant, Elizabeth Pierson, for a special tax levied for the purpose of building a sidewalk opposite said lots by the city of Spring Valley in said county. The judgment is for $124.20 against two lots, described as lots 15 and 16 in block 7, Dalzell's first addition to Spring Valley. There were introduced in evidence two ordinances passed by the city council of Spring Valley, the one a general ordinance, entitled ‘An ordinance in relation to construction of sidewalks,’ and the other a special ordinance, entitled ‘An ordinance providing for the construction of certain sidewalks,’ including that opposite the lots of appellant, both of which said ordinances were passed and approved on July 2, 1901. The appellant filed objections to the entry of judgment against her lots. These objections were overruled, and exception was taken to the action of the court in overruling them.J. L. Murphy, for appellant.

C. N. Hollerich, Wm. Hawthorne, and Ora H. Porter, for appellee.

MAGRUDER, C. J.

The main objection made by the appellant to the entry of judgment against her lots is that both of the ordinances upon which the delinquent special tax report of the city clerk of the city of Spring Valley is based are void. The proof shows that both ordinances were passed on July 2, 1901, and published on July 5, 1901. The special ordinance relating to the construction of the sidewalk here in controversy provides for its construction in accordance with the terms and provisions of the general ordinance, and in the manner specified in the general ordinance. In Hoover v. People, 171 Ill. 182, 49 N. E. 367, we held that a general ordinance adopted by a city, providing that all sidewalks should thereafter be built by special taxation in a certain manner, and that special ordinances might be passed from time to time locating such walks, might be incorporated, by reference, into a subsequent ordinance specifying the places where sidewalks were to be guilt by special taxation. It is claimed on the part of the appellant that the general ordinance passed on July 2, 1901, and published on July 5, 1901, did not take effect until July 15th, that is to say, 10 days after it was published; and that, inasmuch as the special ordinance depended for its existence and operation upon the general ordinance, it was a nullity, as being based upon an ordinance which had not yet gone into effect. In support of this contention, reference is made to section 3 of article 5 of the city and village act (Laws 1871-72, p. 218), which provides that ‘all ordinances of cities and villages, imposing any fine, penalty, imprisonment or forfeiture, or making any appropriation, shall, within one month after they are passed, be published at least once in a newspaper published in the city or village, or, if no such newspaper is published therein, by posting copies of the same in three public places in the city or village; and no such ordinance shall take effect until ten days after it is so published. And all other ordinances, orders and resolutions shall take effect from and after their passage, unless otherwise provided therein.’ 1 Starr & C. Ann. St. (2d Ed.) p. 717, c. 24, par. 65. The contention of counsel for appellant in this regard is without force, because section 3 has no application to a sidewalk ordinance, like the one here under consideration, constructed under the provisions of the sidewalk act of 1875. It is true that such ordinances as are mentioned in section 3 do not take effect until 10 days after they are published, but the ordinances there referred to are those ‘Imposing any fine, penalty, imprisonment or forfeiture, or making any appropriation.’ The sidewalk ordinances upon which the present proceeding is based do not come within the class of ordinances thus specified in section 3. The ordinances here involved contain no provision which, by a fair construction, can be regarded as imposing a fine, penalty, imprisonment, or forfeiture, or as making any appropriation. Illinois Central Railroad Co. v. People, 161 Ill. 244, 43 N. E. 1107;Mix v. People, 106 Ill. 425;Holland v. People, 189 Ill. 348, 59 N. E. 753. The general ordinance in the case at bar took effect from and after its passage, that is to say, from and after July 2, 1901. Section 3 of the special ordinance is as follows: ‘This ordinance shall take effect and be in force from and after its passage and due publication;’ and, as it was passed on July 2, 1901, and published on July 5, 1901, it was certainly in force on July 5, 1901. Therefore the special ordinance was not based upon a general ordinance which had not yet gone into effect, but was based upon a general ordinance which was already in force.

The objection is also made that the ordinances are void upon the alleged ground that they refer to no establishedgrade, and establish no grade, and provide no way for legally establishing a grade, for sidewalks. Section 4 of the general ordinance provides ‘that, whenever such special ordinance shall have been passed by the city council, authorizing and ordering the construction of a sidewalk, such sidewalk shall be constructed in the following manner: The surface of the ground, upon which such sidewalk is to be laid, shall be graded by excavating or filling, and a smooth surface made for the bed of such sidewalk eight inches below the grade line of such sidewalk, as said grade line is established by the city council; that a layer of good sand six inches in depth shall be placed on the graded surface and properly tamped. Then upon such layer of sand shall be placed the brick, bringing sidewalk to grade,’ etc. Here is a reference to the grade line as ‘established by the city council.’ There was introduced in evidence an ordinance passed by the city council on August 25, 1899, establishing the grade for parts of certain streets in Spring Valley, including the street upon which the lots of appellant abut. The reference thus contained in section 4 to the grade line as established by the city council was sufficient, and the ordinance of August 25, 1899, showed what that grade was. It is not necessary that a sidewalk ordinance should fix the grade at which the sidewalk is to be laid, but a reference therein to the established grade of the street to be improved is a sufficient specification of the grade. Claflin v. City of Chicago, 178 Ill. 549, 53 N. E. 339;Brewster v. City of Peru, 180 Ill. 124, 54 N. E. 233. It is true that section 5 of the ordinance makes it the duty of the committee of the city council on streets and alleys, under whose direction and supervision the sidewalk is to be constructed, within a certain time after the passage of any ordinance authorizing and ordering the construction of a sidewalk, to have the line of the sidewalk therein authorized surveyed, and the grade line thereof established and properly designated; but this provision merely empowered such committeeto properly designate and mark the grade points which had previously been established by ordinance. If the intention of section 5 was not to authorize such committee to properly designate and mark the previously established grade points, but to actually establish a grade, then such provision in section 5 is void. This is so because the establishment of the grade is a legislative function, and must be exercised by the council, and therefore the power so to establish the grade cannot be delegated by the city council to a committee, or other official of the city. County of De Witt v. City of Clinton, 194 Ill. 521, 62 N. E. 780. If, however, such provision in section 5 were void, as conferring power on a committee to fix the grade, yet it would have no effect in invalidating the provision, already referred to, contained in section 4. ‘It is a wellestablished rule in regard to by-laws and ordinances that, if a provision relating to one, subject-matter be void and as to another valid, and the two are not necessarily or inseparably connected, it may be enforced as to the valid portion as if the void part had been omitted.’ People v. City of Pontiac, 185 Ill. 437, 56 N. E. 1114.

Objection is also made that the ordinances here under consideration did not require the owners to construct the sidewalk within 30 days after the ordinance came into force. Section 2 of the sidewalk act of April 15, 1875 (Laws 1875, p. 63), provides that the ordinance for the construction thereunder of a sidewalk ‘may require all owners of lots or parcels of land touching the line of said proposed sidewalk, to construct a sidewalk in front of their respective lots or parcels in accordance with the specifications of said ordinance, within thirty days after such publication, and in default thereof, said materials to be furnished and sidewalk to be constructed by said city, town or village,’ etc. 1 Starr & C. Ann. St. (2d Ed.) p. 858, c. 24, par. 430. The word ‘may,’ as here used, means ‘shall’ or ‘must.’ ‘The word ‘may’ in a statute will be construed to mean ‘shall’ or ‘must’ whenever the rights of the public or of third persons depend upon the exercise of the power to perform the duty to which it refers; and such is its meaning in all cases where the public interests and rights are concerned, or where a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be exercised. Or, as the rule is sometimes expressed, whenever a statute directs the doing of a thing for the sake of justice or the public good, the word ‘may’ will be read ‘shall.” 20 Am. & Eng. Ency. of Law (2d Ed.) ...