West Chicago Park Com'rs v. Sweet

• Citation: 167 Ill. 326,47 N.E. 728
• Parties: WEST CHICAGO PARK COM'RS v. SWEET et al.
• Decision Date: 03 April 1897
• Court: Supreme Court of Illinois

167 Ill. 326

47 N.E. 728

WEST CHICAGO PARK COM'RS

v.SWEET et al.¹

Supreme Court of Illinois.

April 3, 1897.

Appeal from Cook county court; O. N. Carter, Judge.

Petition by the West Chicago park commissioners against Samuel H. Sweet and others for a special assessment for improvement of a street. From a judgment dismissing the petition, the petitioners appeal. Reversed.H. S. Mecartney, for appellants.

Peck, Miller & Starr and G. W. Wilbur, for appellees.

CARTWRIGHT, J.

Under the act to enable park commissioners to take, regulate, control, and improve public streets leading to public parks, and to make and collect special assessments, the city of Chicago, by an ordinance passed and approved January 20, 1887, gave its consent that appellants should take, regulate, control, and improve the center 70 feet of Twelfth street, from Ashland avenue west to its intersection with Ogden avenue, and thence from Ogden avenue to Douglas Park, Chicago. This ordinance was passed in pursuance of a petition and consent of owners of frontage on said streets, and it was recited in the ordinance that such consent was by the owners of a majority of the frontage of the lots and lands abutting on the streets taken. On January 24, 1887, appellants accepted control of the streets to be improved and maintained as a boulevard. This was done by a resolution regularly adopted. On January 9, 1888, appellants passed an ordinance for the improvement of these streets by an asphalt roadway 40 feet wide, with curbing, etc., and for a special assessment to pay for the same. A special assessment was levied in pursuance of that ordinance. A petition for confirmation of the assessment was filed in the circuit court of Cook county, and the assessment was confirmed July 13, 1888, except as to lands for which objections had been filed. These objections had been filed in the circuit court by George Thorn and others, but they were overruled, and a further order of confirmation was entered, from which the objectors appealed to this court. The judgment of confirmation was reversed, and the cause was remanded to the circuit court. Thorn v. Commissioners, 130 Ill. 594, 22 N. E. 520. The proceeding having been reinstated in the circuit court, that court, on July 3, 1895, by its order of that date, recited that the petition and assessment roll did not state facts to warrant or enable the court to enter any order of confirmation, whereupon the said special assessment and proceedings were annulled and set aside. About the time that appellants accepted the control of the streets, they took possession of them, and have ever since been in possession, exercising jurisdiction and corporate control over them. The streets have been policed by them, and subject to their control ever since. After passing the ordinance for the improvement, it was begun and was completed in 1889, with the exception of a viaduct in place of the asphalt roadway over the railroad tracks on Ogden avenue. After the first petition for confirmation of the special assessment was filed, and the first order of confirmation entered, the city of Chicago and the Chicago, Burlington & Quincy Railroad Company, for considerations of public safety and convenience, conjointly constructed the viaduct over the tracks within the limits of the improvement. After the first assessment proceeding was set aside by the circuit court, appellants filed the petition in this case in the county court of Cook county for a new special assessment of the cost of the completed portion of the boulevard improvement, under section 20 of an act in force July 1, 1895, entitled ‘An act to enable park commissioners or park authorities to make local improvements, and provide for the payment therefor.’ The total cost of the improvement was alleged to be $181,578.12, of which $2,975.07 was assessed to the park district, and the balance, $178,603.05, was assessed upon property benefited. The amounts paid on the previous assessment were credited, and the balance above credits allowed was $48,364.84. Appellees appeared, and filed numerous objections. There was a preliminary hearing of the objections to entertaining the proceeding, and these objections were sustained, and the petition dismissed.

One reason suggested in support of the judgment dismissing the petition is that appellants had abandoned that part of Ogden avenue within the limits of the viaduct and approaches thereto, and had permitted the city of Chicago to resume control, so as to make a break or hiatus in the street as a park boulevard. This does not appear from the record, but the evidence shows, and the fact was conceded, that appellants were in possession of, and exercising control and jurisdiction over, the streets granted. The fact that the railroad company and the city of Chicago had erected a viaduct, which was accepted, used, and controlled by appellants, as a part of the boulevard, did not oust them of jurisdiction or destroy the general plan of which the viaduct became a part.

It is also argued that section 20 of the act of 1895, under which the petition was filed, is unconstitutional and void, because the subject of making a new assessment to pay the cost of improvements completed before the passage of the act, as provided in that section, is not embraced in its title. The general purpose of the law, as declared in the title, is to enable park commissioners or park authorities to make local improvements, and to provide for the payment therefor. The provision for payment, although the local improvement may be completed, is fairly indicated by this title. Article 9 of the city and village act (1 Starr & C. Ann. St. p. 487), under which special assessments are levied by the corporate authorities of cities or villages, is found under the title of ‘An act to provide for the incorporation of cities and villages'; but that subject, as well as the condemnation of property, the exercise of police power, and the operations of different departments of the municipal government, cannot be said to be foreign to the title, or not fairly connected with it. So long as the title does not cover legislation incongruous in itself, or having no proper connection with the title, the act is not unconstitutional. People v. Nelson, 133 Ill. 565, 27 N. E. 217. The provision for a new assessment where one assessment has failed is within the general subject of legislation embraced in the title, and the existence of such a section could scarcely operate as a fraud or surprise upon the legislature, as not germane to that subject.

It is also insisted that said section 20 of the act of 1895 contravenes section 9 of article 9 of the constitution, which authorizes the general assembly to vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment. Section 20 provides for a special assessment to pay for an improvement made, or a completed portion thereof, where a previous assessment has failed or been set aside; and the claim is that the constitution does not confer authority to levy an assessment for an improvement already made. The case of City of East St. Louis v. Albrecht, 150 Ill. 506, 37 N. E. 934, is cited, as holding that article 9 of the city and village act, which is as broad as the section of the constitution referred to, does not confer such authority. In that case the ordinance providing for the...