City of Chicago v. Ayers

72 N.E. 32, 212 Ill. 59

• Court: Illinois Supreme Court
• Decided: October 24, 1904
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the court:

The original ordinance provided for paving the street with a roadway fifty feet in width. The roadway actually constructed is sixty-four feet in width. Otherwise the improvement is in conformity with the ordinance. If the improvement be deemed substantially the one described in the ordinance, then the objection should have been overruled. (People v. Whidden, 191 Ill. 374; People v. Church, 192 id. 302.) On the other hand, if the deviations are of such a character that the improvement cannot be denominated as one of the same character and description prescribed by the ordinance, the objection was property sustained. Pells v. People, 159 Ill. 580; Gage v. People, 200 id. 432.

Appellant urged that as the street railway company was to pay for a strip of the paving sixteen feet in width in the middle of the street, the property owners have to pay for no more paving than they would have been 'required to pay for had the improvement been constructed as originally designed, and in this proceeding offered evidence to show that the improvement, as constructed, was as beneficial to the property owners as though it had been constructed with a roadway fifty feet in width instead of sixty-four feet in width. The fact that the property owners were not to pay the increased cost makes no difference at all in determining whether the improvement be the same improvement contemplated by the original ordinance, and if, upon increasing the width of the roadway twenty-eight per cent, the city became entitled to a judgment to the effect that the improvement was still the same improvement by showing that it was as beneficial to the property owners as the original improvement would have been, by making the same showing the city would be entitled to the same judgment if the width of the pavement had been' reduced twenty-eight per cent.

If the city, after passing the amendatory ordinance, had sought by a supplemental proceeding to collect from the property owners the increased cost of the pavement, it would scarcely contend that the improvement contemplated by the amended ordinance was the same as that described in the original ordinance, and the fact that the additional cost was to be paid by some person other than the property owners is entirely without weight in determining whether the improvement made was the one for which the property was originally assessed.

In our judgment, the improvement constructed by the city was not the one provided for by the first ordinance, and the objection was therefore properly sustained.

The judgment of the county court will be affirmed.

Judgment affirmed.