Village of Morgan Park v. Wiswall

• Decision Date: 01 April 1895
• Parties: VILLAGE OF MORGAN PARK v. WISWALL et al.
• Court: Illinois Supreme Court

155 Ill. 262

40 N.E. 611

VILLAGE OF MORGAN PARK

v.WISWALL et al.¹

Supreme Court of Illinois.

April 1, 1895.

Appeal from Cook county court; George W. Brown, Judge.

Petition of the village of Morgan Park for confirmation of a special assessment. Austin Wiswall and others filed objections, which were sustained. Petitioner appeals. Affirmed.

Newman & Northrup, for appellant.

Wickett, Wickett & Bruce, H. S. Boutell, K. K. Knapp, and W. J. Ammen, for appellees.

BAKER, J.

The village of Morgan Park includes within its boundaries about 1,800 acres of land. The settled or improved portion of the village covers about 300 acres. It is provided with a sewage system, which is furnished with a 6 1/2-foot brick outlet, which runs down to the Calumet river, about two miles south of the southern limits of the village. It also has a waterworks system. This latter consists of an artesian well, 6 inches in diameter and 1,100 feet deep, reaching down to the St. Peter sandstone. Water is taken out of this well by a deep-well pump, the bucket being located 180 feet below the surface. It is discharged at the surface into a ground vault of a capacity of 25,000 gallons. It is then forced into the mains, and also into an elevated tank that has a capacity of about 125,000 gallons. There seems to be a difference of opinion as to whether or not these existing waterworks are adequate for the present needs of the village, which has a population of about 2,000 people. On August 4, 1893, the president and board of trustees of the village passed an ordinance for the construction of a new waterworks plant. The ordinance provided that certain designated lots should be acquired; that a ground reservoir should be constructed thereon of the capacity of 100,000 gallons; that an artesian well, 1,300 feet deep and 14 inches in diameter, should be bored on said lots; that a pump house should be erected, and a duplex compound noncondensing pumping engine constructed therein, and a deep-well pump placed over the artesian well; and also that steam boilers and appurtenances and force pumps should be constructed for the purpose of forcing the water out of the ground reservoir into the water mains already laid, and to the higher reservoir already existing. All this was declared by the ordinance to be ‘for the purpose of securing a supply of water under pressure for fire protection and other uses of the inhabitants of said village.’ The ordinance provided that the cost and expense of acquiring said lots and constructing said improvements ‘shall be defrayed by a special assessment to be levied upon the property specially benefited thereby, to the amount that the same may be legally assessed therefor, and the remainder of said costs of acquiring said lots and constructing said improvements shall be paid by general taxation.’ The commissioners appointed to make an estimate of the cost of the improvement reported the same at $35,000. The commissioners appointed to make the special assessment estimated and apportioned $504.12 of that amount to the village of Morgan Park, and apportioned and assessed the sum of $34,495.88 upon the several lots, blocks, tracts, and parcels of land in the village. As we understood the record, assessments of special benefits were made upon all, or substantially all, of the real estate within the territorial limits of the village, but that afterwards, in the county court, the proceedings was dismissed by the village authorities as to the four railroad rights of way running through such territorial limits. Upon the return of the assessment roll into the county court of Cook county, some 30 of the property owners, who owned about 800 acres of the land within the village limits, filed objections to the confirmation of the assessment. The objections interposed were very numerous. Among them were these: That the ordinance of August 4, 1893, was void; that the assessment and all the proceedings are void; that there is no authority of law for the making of said assessment for the proposed improvement; that the making of said proposed improvement by special assessment is not within the corporate powers of the village; that the proposed improvement is not a local improvement; and that the assessment is wholly unconstitutional, inequitable, and void. Prior to the trial, it was ordered that all objections raising legal questions should be reserved until after the jury issues were determined, and that no rights should thereby be lost to the objectors. Thereupon there was a jury trial, which resulted in a verdict for the petitioner, and a finding that the property of the objectors was not assessed more than it would be specially benefited, or more than its proportionate share of the cost of the improvement. A motion for a new trial was made by the objectors, but it was never formally disposed of by the court. The petitioner moved for judgment on the verdict, but the court thereupon dismissed the petition ‘in so far as it related to the property of the objectors,’ on the ground that the improvement was a general improvement, and not a local improvement, and that the property of the objectors was not specially benefited by the improvement, but the benefit sustained, if any, was common to all the property in the village. From these rulings, and the judgment of the court dismissing the petition as to Austin Wiswall and the other objectors, the village of Morgan Park prosecuted this appeal.

It is urged by appellant that the determination of the question whether or not the improvement at bar should be paid for by special assessment was within the discretion of the board of trustees of the village, and, they having decided that it should so be paid, their decision is conclusive, and cannot be reviewed by the courts. If it be conceded that the improvement is in fact a ‘local improvement,’ within the meaning of the constitutional provision and the statute, then the conclusion reached by appellant is sound, but otherwise it is not. It is the ‘power to make local improvements by special assessment’ that the constitution authorizes the general assembly to vest in the corporate authorities of cities, towns, and villages. Article 9, § 9. And it is the power to make local improvements by special assessment that the legislature has accordingly delegated to such municipal corporations. Rev. St. c. 24, art. 9, §§ 1, 2. If a proposed improvement is a local improvement in the sense suggested, then it devolves upon the municipality to prescribe by ordinance whether it shall be made by special assessment, by special taxation, by general taxation, or by a combination of the latter with either of the others. Kuehner v. City of Freeport, 143 Ill. 92, 32 N. E. 372. The improvement being in truth and in fact a local improvement, the decision of the municipal authorities is final when they adopt one or another of the modes prescribed by law for the purpose of raising funds to pay for it. In Louisville & N. R. Co. v. City of East St. Louis, 134 Ill. 656, 25 N. E. 962, the improvement was a viaduct over several railroad tracks, and a creek immediately east of them, that were crossed by a public street called ‘Broadway.’It was objected that the viaduct was ‘not a local improvement, within the meaning of the statute authorizing the levy of special assessment.’ In there saying that the decision of the city council was final, it was manifestly only intended to hold that the determination of the question whether the improvement there involved should ‘be treated as a local improvement in raising funds to pay for it’ by special assessment, or treated as a general improvement by paying for it out of the general funds of the city, devolved upon the city council alone, and not upon the courts. The immediately following language, to wit, ‘Of course, they must act reasonably and without fraud, otherwise their action will be void,’ plainly indicates that it was not intended to be held by the court that the action of a city council providing that a proposed improvement shall be paid for by the special assessment was always final, regardless of the constitutional and statutory requirements that an improvement that can be paid for by special assessment must be a local improvement. And in the subsequent case of City of Chicago v. Law, 144 Ill. 569, 33 N. E. 855, in speaking of this case of Louisville & N. R. Co. v. City of East St. Louis, we said: ‘That was a case, in its facts, where there could be no doubt that the improvement was a local improvement, within the meaning of the statute, as was held by the court, and what was said in that case must be confined to the facts presented by the record then under consideration.’ For the proposition in the East St. Louis Case that the ‘decision on these questions is final,’ the only authority cited in the opinion is Fagan v. City of Chicago, 84 Ill. 227. Turning to that case, it will be found that what was there held was that cities, towns, and villages have the exclusive power to determine whether a proposed local improvement shall be made by special assessment, special taxation, or general taxation, and that the courts have no power to interfere with the exercise of this discretion. In the case of City of Chicago v. Law, already cited, it was held that, where an improvement is provided for by ordinance, which is manifestly not a local improvement, a special assessment therefor may be challenged by the property owner whose property may be assessed, and the court may refuse to confirm such assessment, and dismiss the proceeding. We think it immaterial to the particular question just now under examination to inquire upon what ground it was that we held the improvement there involved was not a local improvement. In City of Bloomington v. Chicago & A. R. Co., 134 Ill. 451, 26 N. E. 366, we held that the corporate authorities of cities and villages cannot arbitrarily provide by ordinance that an improvement within their corporate...