White v. City of Alton
| Decision Date | 27 October 1893 |
| Citation | 149 Ill. 626,37 N.E. 96 |
| Parties | WHITE et al. v. CITY OF ALTON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Madison county court; William H. Krome, Judge.
Petition by the city of Alton for confirmation of a special tax. D. C. White and others filed objections, which were overruled, and they appeal. Affirmed.Levi Davis, Jr., and Alex. W. Hope, for appellants.
Jno. F. McGinnis, Corp. Counsel, J. E. Dunnegan, and Wise & McNulty, for appellee.
This is an appeal from a judgment of the county court of Madison county confirming a special tax levied by the city of Alton for the improvement of Second street from the east curb line of Piasa street to the west curb line of Henry street. The application having been set for a hearing on the 13th day of October, 1892, the appellants entered a motion for a continuance, and in support of the motion filed an affidavit set out in the record. The court overruled the motion, and this ruling of the court is the first alleged error relied upon to reverse the judgment. Two alleged facts are relied upon in the affidavit for a continuance: First. That at Second and Market streets, at Second and Alby streets, at Second and Eastern streets, and at Second and Alton streets, to which point the improvement is now completed, the paving was made, and the streets paved and extended into the cross streets, from 8 feet to 15 feet, including both sides, wider than 56 feet, as described and required that the improvement should be made by the ordinance herein; which widening of the street greatly increased the cost of said paving. Second. That the grade of Second street in making the improvement has been changed; that on the north side it has been lowered, so that the top of the pavement will be some 18 inches lower than the established grade. It may well be doubted whether appellants showed sufficient diligence in their efforts to procure witnesses to prove the facts relied upon, but, waiving that question, if the facts relied upon were proved, they would not, in our opinion, constitute a defense to the proceeding. As to the first fact relied upon, if in making the improvement on Second street the city of Alton saw proper to extend the improvement of few feet into cross streets, it had the undoubted power to do so; not as a part of the improvement under the ordinance, to be paid for by this special tax, but an independent improvement, to be paid for by the city by general taxation. These extensions into the cross streets are not to be regarded as a part of the improvement provided for in the ordinance, but independent of it. As to the second fact, the city of Alton had the right to change the grade of the street if it saw proper, and the change could have no bearing on the tax in question. If appellants of other property owners were damaged by a change of grade made by the city of Alton, they had a remedy in an appropriate action; but proof of change of grade could be no defense in the application to confirm the special tax. The question in regard to an improvement failing to conform to the requirements of the ordinance was considered in Ricketts v. Village of Hyde Park, 85 Ill. 110, and the court held that the fact that some changes are made in the character of the improvement from that required in the ordinance providing for the same is no defense to a special assessment to pay for same. This objection, if tenable, is to be availed of by injunction before the work is completed.
It is next claimed the court erred in denying the motion to dismiss the proceedings. This motion was predicated upon the ground that the petition failed to recite the whole ordinance as required by chapter 24, § 137, of the Revised Statutes. This section of the statute provides that the petition shall be in the name of the corporation, and shall recite the ordinance for the proposed improvement, and the report of the commissioners. Upon looking into the record it will be found that the ordinance is set out in the petition in haec verba, but section 1 provides, among other things, that: ‘The excavating and grading shall be to such a depth as will cause the top of the pavement, when laid, to conform to the respective established grades of said street as now established by ordinance of the said city of Alton; and the said pavement herein provided for shall, when laid, conform to said grade, as established by an ordinance of said city, chapter 13, § 300, Rev. Ord. [149 Ill. 630]1889. And, as the ordinance establishing the grade is not set out in the petition, it is claimed that petition is fatally defective. We do not think that the statute contemplated or required that every ordinance that might be referred to should be set out in the petition. The ordinance providing for the improvement should be incorporated in the petition, so that the nature and character of the improvement may appear from the petition. Here the nature and character of the improvement fully appear without setting up the ordinances of the city of Alton wherein the grade is established, and nothing could be gained by incorporating such ordinance in the petition.
It is next claimed that the letting of the contract to David Ryan by the city of Alton to pave and improve Second street was a fraud on the property owners. At the time the ordinance was passed, David Ryan was an alderman of the city. He was a member of the committee to estimate the cost of the improvements. He signed the report, and it was approved by the council. Ryan remained a member of the city council until the 28th day of June, 1892, when he resigned. On that day bids were received, and, after Ryan's resignation had been accepted, he put in a bid for the work, and, being the lowest bidder, he secured the contract for the work. It is not claimed that the evidence disclosed the fact that Ryan's action in the council was fraudulent, or that his action in the council was with a view to ultimately obtain a contract from the city. But it is said his position gave him an undue advantage over other bidders in procuring the contract, but, if that be true, the taxpayers of the city were not the losers, but rather the gainers, as his bid was the lowest, and it was to the interest of the taxpayers to let the contract as low as...
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