Willis v. City of Chicago

• Decision Date: 20 February 1901
• Citation: 189 Ill. 103,59 N.E. 543
• Parties: WILLIS v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

189 Ill. 103

59 N.E. 543

WILLIS

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Feb. 20, 1901.

Error to Cook county court; O. N. Carter, Judge.

Special tax proceeding by the city of Chicago against Charles G. Willis and others. From a default judgment of confirmation, defendants bring error. Reversed.

William F. Carroll, for plaintiffs in error.

Charles M. Walker, Corp. Counsel, and Denis E. Sullivan, Asst. Corp. Counsel, for defendant in error.

WILKIN, J.

This is a writ of error to the county court of Cook county to review the proceedings in that court confirming a special assessment against the property of plaintiffsin error. The assessment was made by the city of Chicago to pay for curbing with combined curb and gutter, and paving, Drexel avenue from Seventy-First street to South Chicago avenue, and a system of streets. The judgment of confirmation was entered July 22, 1896, by default. One of the grounds of reversal is that the ordinance authorizing the assessment is void for a failure to specify the nature, character, location, and description of the improvement, the principal objection to it being that it does not specify the height of the combined curb and gutter. The ordinance is as follows: ‘Granite concrete combined curb and gutter, with a foundation of cinders six inches in depth, shall be laid on each side of said roadway. Said curb shall be six inches in thickness throughout, and the gutter flags shall be eighteen inches in width. The top of said curb shall be at the established grade of said street; the roadways of each of said above-named streets between the limits given on each, between said gutter flags, to be filled to within nine and one-half inches of the grade of the pavement with sand, etc. Upon the roadway thus prepared shall be laid a bed of hydraulic cement, etc. The final surface of the pavement shall conform to the established grade of said street between said points, as shown by an ordinance fixing the grade of said streets now on file in the office of the city clerk of the city of Chicago.’ It is insisted on behalf of the plaintiffs in error that this identical ordinance was before us in the cases of Lundberg v. City of Chicago, 183 Ill. 572, 56 N. E. 415, and Beach v. Same, 186 Ill. 208, 57 N. E. 1129, in each of which cases the ordinance was held insufficient to give the court jurisdiction to render a judgment confirming special assessments made under it. And this is conceded to be true by counsel for the city, their contention, however, being that the decisions in those cases were made without the attention of the court being called to the language in the ordinance, ‘the top of said curb shall be at the established grade of said street.’ In this, counsel are in error. In the former of the above cases the defect in the ordinance was shown to be in failing to give the ‘depth of the gutter or corresponding height of the curb, or to furnish any data from which it can be determined.’ The trouble with the ordinance is that it gives data from which the top of the curb can be ascertained, but gives no means of ascertaining the bottom of it. The top is the grade of the street, but the bottom or lower edge of the curb may be one foot or two feet below the grade, for anything shown in the ordinance. The defect is not precisely the one condemned in the...