The City of Chicago v. Baer

• Decision Date: 30 April 1866
• Citation: 1866 WL 4587,41 Ill. 306
• Parties: THE CITY OF CHICAGOv.LAWRENCE BAER et al.
• Court: Illinois Supreme Court

41 Ill. 306

1866 WL 4587 (Ill.)

THE CITY OF CHICAGO

v.LAWRENCE BAER et al.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago, the Hon. JOHN M. WILSON, Chief Justice, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. S. A. IRVIN, Messrs. GOUDY & CHANDLER and Mr. E. C. LARNED, for the appellant.

Mr. FRANCIS ADAMS and Mr. M. F. TULEY, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

On the 27th of July, 1865, the common council of the city of Chicago, passed an ordinance requiring North Clark street, from the north line of Chicago avenue, to the dock line of the Chicago river, to be curbed with stone and paved with what is known as the Nicholson pavement. The commissioners of the board of public works proceeded to make an assessment on the real estate deemed benefited by the contemplated improvement, and reported it to the common council, by which body it was approved, and on the 18th of October, 1865, a warrant was issued for its collection. At the February Term, 1866, of the Superior Court of Chicago, the collector made an application for judgment against those lots on which the assessment had not been paid. The owners of many of the lots appeared and resisted the petition. The court sustained their objections, and refused to enter judgment, and the city has brought the record to this court.

In the view we have taken of this case, it is necessary to consider but one of the numerous objections taken to the collector's report. It appears by the record that a street railway company, called the North Chicago City Railway company, has possession of a considerable portion of this street by its road-bed, ties, rails and cars, and that no part of the assessment in question was levied upon the railway company. It is not contended that the company is not benefited by the improvement. That it must be very largely benefited, is a proposition as to which, we presume, there can be no controversy. We are not advised by the record what is the present pavement of North Clark street, or whether it is paved at all, through the whole distance intended to be covered by the proposed improvement. If paved, we must suppose the pavement has become imperfect, or it would not be renewed at a heavy cost. But whether this new pavement was to be in place of one of some other kind, no longer fit for use, or to replace the alternate mud and dust of the original street, it is clear that the railway must be largely benefited by the improvement. It must be a matter of great importance to it to have a smooth and durable road-bed for the passage of their cars and the travel of their horses. The commissioners have not reported that the railway was not benefited. No question of that character embarrasses the record. It is admitted in all the arguments, that the railway was not assessed, because, in whatsoever degree it might be benefited, it was not considered by the city authorities liable to any portion of the expense. The case is submitted to us upon that issue, and both parties express themselves desirous of a decision that shall settle a question of much importance to the people of Chicago. We assume then, as counsel have assumed, that the railway company would be benefited by the proposed improvement. The precise degree is, for the purposes of this case, wholly immaterial.

On the 14th of February, 1859, the legislature passed an act incorporating the North Chicago City Railway company, and authorized it to construct and operate a railway in such streets in the north division, and upon such terms, as might be agreed upon with the city council. On the 23d of May, 1859, the council passed an ordinance, the seventh section of which purports to fix these terms, and which the company accepted. On the original draft of the ordinance, now on file in the city clerk's office, and over a portion of this seventh section, is pasted a strip of paper, on which is written what purports to be a portion of the provisions of this section. The writing underneath this pasted paper is not obliterated, and, by being held against a strong light, can be read. The writing underneath requires the company to keep eight feet of every street occupied by them, if only a single track is laid, or sixteen feet if a double track is laid, in good repair and condition, and to pay in the same proportion for any improvement that shall be ordered by the city council. The writing upon the pasted paper is so worded as to make the company liable for only ordinary repairs. The handwriting of the original ordinance and that upon this pasted paper are not the same. It is contended on the one side that the section which actually was adopted by the council was that written upon the original paper, and that the pasted paper is a forgery, interpolated into the ordinance without the authority of the council, and never adopted by that body. All this is denied upon the other side; and it is contended that the provisions found on the pasted paper were a portion of the ordinance adopted. On this issue much evidence was taken, and to its discussion much of the argument has been devoted. Whether, however, this pasted paper was proved to be a forged interpolation, by evidence legally admissible for that purpose, is a question which, in the view we have taken of the case, it is unnecessary to decide. It may be remarked, however, that the mere fact that such a question should be made and left in so great doubt, and the evidence embodied in the record in regard to it, show the necessity of adopting some system by the common councils of our growing cities, whose local legislation affects pecuniary interests of great value, that shall not leave in doubt what the ordinances really are under which their people live.

We now will state the grounds upon which we place our decision. In our judgment, this case must be clearly decided upon the principles established by this court as the law of this State, in the case of the City of Chicago v. Larned, 34 Ill. 267. That case was very fully argued and very maturely considered by the court, and we are entirely satisfied with the conclusions there announced. It was there held, that the constitutional provision requiring equality of taxation applied as well to special assessments for improvements of this character as to any other form of taxation; that, when the burden is to be imposed upon those who are benefited by the proposed improvement, it must be imposed upon all...