Village of Hyde Park v. Spencer

• Decision Date: 13 November 1886
• Citation: 8 N.E. 846,118 Ill. 446
• Parties: VILLAGE OF HYDE PARK v. SPENCER and others.
• Court: Illinois Supreme Court

118 Ill. 446

8 N.E. 846

VILLAGE OF HYDE PARK

v.SPENCER and others.

Supreme Court of Illinois.

November 13, 1886.

Appeal from county court, Cook county.

Petition by the village of Hyde Park for the confirmation of a special assessment under an ordinance passed by it on December 21, 1885.Objections thereto sustained, and petition dismissed.Petitioner appeals.Willard & Driggs, for appellant.

Goudy & Green, Edward Roby, F. P. Simons, and Doolittle & McKey, for appellees.

MAGRUDER, J.

In December, 1885, the village of Hyde Park passed an ordinance providing for the construction of a sewer and pumping-works on Sixty-third street, together with an outlet pipe, and for the maintenance and repair of the same.Section 1 provides that a brick sewer shall be constructed in Sixty-third street, to be connected with wells or basins, to be located on a lot or parcel of land, (describing it,) or upon some other suitable lot in the immediate vicinity of the one above described; that 40 man-holes shall be built upon said sewer, upon such points as the engineer in charge may direct; that 32 catch-basins shall be constructed and connected with said sewer, with nine-inch vitrified tile-pipe, located at such points on the curb-line of said street as the engineer in charge may direct; that a lot or parcel of land be purchased for the location of suitable buildings and pumping-works for drainage purposes, described as follows, (describing it,) or that some other suitable lot in the immediate vicinity of the lot above described be purchased, as aforesaid; that upon the lot to be purchased as above there be erected suitable buildings, consisting of an engine-room, boiler-room, and coal-room, and stack, substantially as same is delineated upon plans on file in the office of the village engineer; that suitable pumping-engines and boilers be purchased, and erected upon suitable foundations, inside of the said buildings, connected by wells or basins, into which the Sixty-third street sewer, heretofore described, shall discharge; that a cast iron pipe be laid from said pumps along Sixty-third street, Stony Island avenue, and Fifty-sixth street, to Lake Michigan; that a sufficient sum be levied and collected for maintaining the pumping-works contemplated by this ordinance, and for keeping the same in repair for the term of one year from the completion of the same.Section 2 provides that the cost and expenses of the improvement shall be defrayed by special assessment, to be made in accordance with sections 18 to 51, inclusive, in article 9 of ‘An act to provide for the incorporation of cities and villages,’ approved April 10, 1872.Section 3 appoints commissioners to make an estimate of the cost.Section 4 provides that, for the purpose of the improvement aforesaid, the territory lying within the following boundary lines are hereby declared to be a drainage district, (describing it;)‘the said proposed improvement being deemed adequate only to the proper drainage of the territory aforesaid.’

The commissioners appointed by the ordinance to estimate the cost of the proposed improvement made their report to the board of trustees, and estimated the total cost at $116,000, composed of the following items:

+-----------------------------------------------------------------------+
                ¦Cost of main sewer, with wells, man-holes, catch-basins, house¦        ¦
                +--------------------------------------------------------------+--------¦
                ¦connections, slants, etc.,                                    ¦$ 44,000¦
                +--------------------------------------------------------------+--------¦
                ¦Cost of land,                                                 ¦2,600   ¦
                +--------------------------------------------------------------+--------¦
                ¦Cost of engine building, etc.,                                ¦10,000  ¦
                +--------------------------------------------------------------+--------¦
                ¦Cost of engines and boilers,                                  ¦30,000  ¦
                +--------------------------------------------------------------+--------¦
                ¦Cost of cast-iron outlet pipe,                                ¦23,000  ¦
                +--------------------------------------------------------------+--------¦
                ¦Cost of one year's maintenance of said pumping works,         ¦4,000   ¦
                +--------------------------------------------------------------+--------¦
                ¦Cost of making and levying and collecting the assessment,     ¦2,400   ¦
                +--------------------------------------------------------------+--------¦
                ¦Total cost, as estimated,                                     ¦$116,000¦
                +-----------------------------------------------------------------------+
                

The report was adopted by the board, and by its order a petition was filed in the county court of Cook county on December 23, 1885, by the village of Hyde Park, by the president of its board of trustees, setting forth the ordinance, the report, and the order above mentioned, and praying that the cost of said improvement might be assessed in the manner prescribed by law.The court appointed commissioners to make the assessment, who took the oath.The assessment roll was returned into court, and on January 11, 1886, a rule was entered giving 10 days within which objections might be filed.Various objections were filed by the appellees, and, after hearing, the county court dismissed the proceeding.From such order of dismissal the village prosecutes its appeal to this court.

The act of the legislature under which the proceeding was instituted is as follows:

‘An act to vest the corporate authorities of cities and villages with power to construct, maintain, and keep in repair drains, ditches, levees, dykes, and pumping works for drainage purposes, by special assessment, upon the property benefited thereby.Approved June 22, 1885.In force July 1, 1885.

‘Section 1.Be it enacted by the people of the state of Illinois, represented in the general assembly, that the corporate authorities of cities and villages are hereby vested with power to construct drains, ditches, levees, and dykes, to erect pumping-works, and to acquire the necessary land and machinery for such purposes, and otherwise to provide for draining any portion of the lands within their corporate limits, by special assessment upon the property benefited thereby.

‘Sec. 2.That the corporate authorities of cities and villages are hereby vested with the power to maintain and keep in repair such drains, ditches, levees, dykes, pumping-works, and machinery, and such drainage improvement, by special assessment upon the property benefited thereby: provided, that no lot, block, tract, or parcel of land shall be assessed more than once in any one year for such maintenance and repair.

‘Sec. 3.All the proceedings for the making of the improvements in this act mentioned, and for the maintenance and repair thereof, and for the levy and collection of the special assessments to defray the cost of the same, shall be in accordancewith the provisions of article nine of the general act for the incorporation of cities and villages, approved April 10, 1872.’

The main objection urged by appellees is that the act of 1885 is unconstitutional.The second section of the act confers ‘the power to maintain and keep in repair.’ etc.It is said that section 9 of article 9 of the constitution, by the terms of which ‘the general assembly may vest the corporation authorities of cities, towns, and villages with power to make local improvements by special assessment,’ etc., does not vest such authorities with power to maintain local improvements.It is claimed that the power to make improvements does not include the power to maintain them.The item of $4,000 for ‘one year's maintenance of said pumping-works' is therefore objected to as improperly included by the commissioners in their estimate of the cost of the improvement.Counsel contend that, inasmuch as the second clause of secton 9 of article 9 of the constitution provides that, ‘ for all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same,’ the maintenance of the pumping-works, if a corporate purpose at all, must be paid for out of funds raised by general taxation, and not by special assessment.

We do not deem it necessary to discuss the position thus taken by appellees, for the reason that, if the legislature had the authority to pass the act of 1885, such authority must be referred, not to section 9 of article 9 of the constitution, but to another and entirely different provision of that instrument.An amendment to section 31 of article 4 of the constitution was adopted by a vote of the people in 1878.That section, as thus amended, reads as follows: ‘The general assembly may pass laws permitting the owners of lands to construct drains, ditches, and levees, for agricultural, sanitary, or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains, and ditches, and to keep in repair all drains, ditches, and levees heretofore constructed under the laws of this state, by special assessments upon the property benefited thereby.’

In Moore v. People, 106 Ill. 376, in discussing the constitutionality of the drainage act of 1879, we said: ‘The act under...