Rich v. City of Chicago

• Decision Date: 31 March 1894
• Citation: 152 Ill. 18,38 N.E. 255
• Parties: RICH et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

152 Ill. 18

38 N.E. 255

RICH et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

March 31, 1894.²

Appeal from Cook countycourt; Frank Scales, Judge.

Petition by the city of Chicago for confirmation of a special assessment.M. Byron Rich, the Illinois Central Railroad Company, and others filed objections, which were overruled in part.Objectors appeal.Modified.

F. W. Becker, Rich & Stone, and C. V. Gwin, for appellants.

Charles C. Gilbert and John S. Miller, Corp.Counsel, for appellee.

SHOPE, J.

The city of Chicago passed an ordinance for the construction of a receiving well and pumping works at the southwest corner of Seventy-Third street and Railroad avenue, in said city, and for the construction of sewers in said street and others, and a discharge sewer from the pumping works into Lake Michigan.It is provided by the ordinance that the receiving well and pumping station, etc., shall be constructed upon lot 62, division 4, of south shore subdivision of the north fractional 1/2, section 30, township 38 N., range 15 E., of the third P. M., and specifically describes in detail the mode of constructing the same; and also the materials to be used, mode of construction, location, etc., of the sewers and discharge sewer.The objections to the specifications in the ordinance will be hereafter noticed.The ordinance creates a drainage district within the city; prescribes that the cost of said improvement shall be paid by assessment of property specially benefited thereby, so far as may be legally done, in accordance with article 9 of the cities and villages act; and appoints commissioners to estimate the cost of the proposed improvement, etc.The commissioners having reported an estimate of the cost thereof, this petition was filed, in the county court, under said article, for the assessment of the same upon the property benefited, etc.Commissioners were appointed to levy the same, and an assessment roll was duly returned.An order was entered fixing a day and hour when objections would be heard to said assessment roll.

It is objected, first, that the notice published was insufficient, under the statute, to give the court jurisdiction to proceed to the confirmation of said assessment roll.We do not deem it important to determine whether the objection, if made in apt time, would have prevailed or not.The filing of the petition under the statute gave the court jurisdiction of the subject-matter.The objectors(appellants here) severally appeared, and without objecting to the jurisdiction of the court, and without challenging the sufficiency of notice, filed objection to the confirmation of the assessment roll, and proceeded to the hearing both of objections to the court and of objections triable by jury, without objection.Objectors cannot now be heard, for the first time, that they were not served with the proper notice of the pendency of the proceedings in the county court.The proceedings and judgment as to the lots assessed are several, and appellants cannot be heard to object that the assessment rolls as to other lands or lots assessed were improperly confirmed.

The ordinance in this case was passed in pursuance of the provisions of the act of the legislature approved June 22, 1885, entitled ‘An act to invest the corporate authorities of cities and villages with power to construct, maintain and keep in repair, drains, ditches, levees, dikes, and pumping works for drainage purposes, by special assessment upon property benefited thereby.’3 Starr &C. Ann. St. 244.The validity of this statute and ordinance passed thereunder came before the court in Village of Hyde Park v. Spencer, 118 Ill. 446, 8 N. E. 846, andPearce v. Hyde Park, 126 Ill. 287, 18 N. E. 824, and was sustained (see, also, Drexel v. Town of Lake, 127 Ill. 54, 20 N. E. 38); and the authorities of the city or village were held to be the proper ‘corporate authorities' of the drainage district, within the meaning of section 31, art. 4, of the constitution, authorizing the general assembly to provide for the organization of drainage districts, and to vest the corporate authorities thereof with power over the same.It is, however, contended that, if this be so, the act of 1885 is repealed by the act of 1889, entitled ‘An act to create sanitary districts, and to remove obstructions in the Desplaines and Illinois rivers,’ in force July 1, 1889(3 Starr &C. Ann. St. 478), so far as it relates to territory within districts organized under the act of 1889.We are required by section 2 of the latter act to take judicial notice of the organization of districts thereunder; and it is admitted in the record that all the territory included in the district organized under the ordinance was, at the time of the passage of such ordinance by the city council of the city of Chicago, included within the sanitary district of Chicago organized under said act of 1889; that trustees were duly elected, etc., as provided by said act, within said sanitary district.The validity of the act of 1889, as well as the organization of said sanitary district and the title of the trustees to the offices thereunder, has been expressly affirmed by this court.People v. Nelson, 133 Ill. 565, 27 N. E. 217;Wilson v. Board, 133 Ill. 443, 27 N. E. 203.

The question is therefore fairly presented whether the city authorities, acting under the act of 1885, and in conformity therewith, may provide for the construction of drains and ditches within the city in territory also included within such sanitary districts.Section 3 of the act of 1889 provides for the election of nine trustees therein, who shall hold their office for the term of five years, etc.Section 4 provides: ‘The trustees elected in pursuance of the foregoing provision of this act shall constitute a board of trustees for the district by which they are elected, which board of trustees is hereby declared to be the corporate authorities of such sanitary district, and shall exercise all the powers and manage and control all the affairs and property of such district.’It will be seen they are to be the ‘corporate authorities' of the sanitary district, are to exercise all the powers of such district, and control all its affairs and property.It is not declared, nor will the statute admit of the construction, that they are to exercise all of powers that may be granted in respect of the drainage of lands within the district, but only such powers as are conferred upon the sanitary district.If we now turn to section 7 of the act, we shall see what power in respect of drainage is committed to the corporate authorities of the sanitary district.It is therein provided: ‘The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing, and maintaining one or more main channels, drains, ditches, and outlets for carrying off and disposing of the drainage, including the sewerage, of such district, together with such adjuncts and additions thereto as may be necessary or proper, to cause such channels or outlets to accomplish the end for which they were designed, in a satisfactory manner.’The trustees are to make one or more main channels, drains, ditches, and outlets, with such adjuncts and additions thereto as may be necessary or proper to accomplish the end for which such ‘channels and outlets' are designed, in a satisfactory manner.

Independently of the history of this legislation, which is a matter of common knowledge, it is apparent from the act that the purpose of the legislation, in the creation of such districts, was the construction of a main channel or channels, through which the entire drainage and sewage of the district might be discharged, and, upon its or their completion, the carrying, by means of adjuncts or additions, the sewage and drainage of the district into such channel or channels.Not only is this evinced by the language quoted, but the residue of section 7 provides for the extension of such channels or outlets outside of the sanitary district; authorizes the making and establishment of docks adjacent to any navigable channel made by the district, and to lease, manage, and control such docks, or any water power which may be incidentally created in the construction of such channels or outlets.Section 20 provides for a channel or outlet which may discharge sewage into or through rivers or streams of water beyond the limits of the district, and provides that such channel or outlet shall have sufficient size and capacity to produce a continuous flow of at least 200 cubic feet per minute for every 1,000 of the population of the district thereby drained, etc.Section 19 provides that the district shall be liable for all damages to real estate outside of such district which shall be damaged by reason of the construction, etc., of any channel, etc.And by section 23, if any channel is constructed under the provisions of the act, by which any of the waters of Lake Michigan shall be caused to pass into the Desplaines or Illinois river, the size and capacity is specifically prescribed, and such channel, when completed, etc., is declared a navigable stream.Enough has been stated to show the evident purpose and intention of the legislature to attempt the ultimate bringing of the sewage and drainage of the district into channels and outlets there in provided for; and it is equally apparent that the construction of the adjuncts and additions authorized by the act are dependent upon the construction and completion of the main channel or channels.Their only purpose is to accomplish the end for which such main channels are designed.It could not have been within the legislative contemplation that the sewerage system of the incorporated city or village within the sanitary district should pass immediately under the control of the trustees of the sanitary district.Undoubtedly, upon completior of the main...