City of Chicago v. Underwood

101 N.E. 261, 258 Ill. 116

Opinion

Mr. Justice Vickers

delivered the opinion of the court:

This is an appeal from the judgment o>f the superior court of Cook county overruling the legal objections of Georgie L. Underwood and confirming a special assessment against her lands for the cost of curbing, grading and paving Sixty-ninth street from South Park avenue to Vincennes road, in the city of Chicago. Three errors are relied upon for a reversal, and are as follows: (1) That the court erred in overruling the legal objection that the engineer’s estimate as to new catch-basins to be constructed is indefinite; (2) that the court erred in overruling the legal objections of appellant to. the estimate in regard to the reconstruction of the man-holes and catch-basins, so- far as the contemplated improvement, and the estimate thereof, included the adjustment of man-holes, in the right of way of the street car company; (3) that there was error in overruling the objection that it was necessary to have provided for the removal of obstructions along the right of way,.—that is to say, telegraph poles in the south half of the roadway to be constructed. These errors will be considered in the order in which they have been stated.

First—The portions of the estimate of the engineer upon which the first and second assignments of error are based are as follows: “Constructing six new catch-basins, complete, at $50, $300; adjusting sewer man-holes and catch-basins and constructing and connecting catch-basin inlets, $1568.” Appellant makes different objections, to these two items in the engineer’s estimate, which renders it necessary to consider them separately.

The objection to the estimate of $300 for “constructing six new catch-basins” is, that the estimate is insufficient because it fails to. mention the material of which the catch-basins are to be constructed and fails to state the dimensions. It is shown that catch-basins may be constructed of various kinds of material and of different sizes, and that the cost will vary according to the material used and the dimensions of the catch-basins to. be constructed. It is argued that it is essential to the rights of the property owner that he should have information as to. the nature and character of the proposed improvement, so that he may intelligently consider and act upon the questions that will come before the public hearing. Conceding that the property owner should be given information as to the general nature and character of the proposed improvement, it does not follow that such information must be afforded by the estimate of the engineer. The board of local improvements is authorized, either with or without a petition, to originate a local improvement to be paid for by special assessment, and the statute provides that in either case the board of local improvements shall adopt a resolution describing the proposed improvement, which resolution shall be at once transcribed into the records of the board. The statute also provides that by the same resolution a day and hour shall be fixed for a public hearing, which shall be not less than ten days after the adoption of such resolution. The statute further provides : . “Said board shall also cause an estimate of the cost of such improvement (omitting land to be acquired) to be made in writing by the engineer of the board (if there be one; if not, then by the president) over his signature, which shall be itemized to the satisfaction of said board and which shall be made a part of the record of such resolution.” The next step required to be taken is the notice of the time and place of the public hearing, which must be sent by mail, addressed to the person in whose name the property fronting on the proposed improvement was assessed. The notice must contain the substance of the resolution adopted by the board and estimate of the cost of the proposed improvement, and a notification that the extent, nature, kind, character and estimated cost of such proposed improvement may be changed by the said board at the public consideration thereof, etc. After the public hearing, if the proposed improvement be not abandoned, the board of local improvements is required to prepare an ordinance to be submitted to the city council. The ordinance shall prescribe the nature, character, locality and description of such improvement, and provide whether the same shall be made wholly or in part by special assessment or special taxation of contiguous property, and if in part only, it shall so state. The requirements above set out are found in sections 7 and 8 of the Local Improvement act. (Hurd’s Stat. p. 406.) Section 9 of the statute provides that with such ordinance the board shall present to the city council its recommendation of such improvement, signed by at least a majority of the members of said board, and by the statute the recommendation of said board is made prima facie evidence that all of the preliminary requirements of the law have been complied with, and if a variance be shown in the proceedings in the court it shall not affect the validity of the proceeding, “pnless the court .shall deem the same willful or substantial.”' Section io requires that the board shall also present with the ordinance and recommendation to the city council “an estimate of the cost of such improvement, as originally contemplated, or as changed, altered or modified at the public hearing, itemized so far as the board of local improvements shall think necessary, over the signature of the engineer of the board, if there be one; if nót, then the president of said board, who shall certify that, in his opinion, the said estimate does not exceed the probable cost of the improvement proposed, and the lawful expense attending the same.”

The foregoing are all the provisions of the statute that have any bearing upon the question under consideration. It will be observed that the statute makes no provision requiring that the estimate shall contain a detailed statement of the amount or character of material that will be necessary to complete the improvement. It is no part of the estimating engineer’s duty to determine the character of material that will be necessary for the improvement, but it is his business merely to estimate the cost of the improvement that is described in the resolution. The only requirement, in so far as the estimate is concerned, is that it shall be itemized to the satisfaction of the board of local improvements. In construing this statute, this court, in Hulbert v. City of Chicago, 213 Ill. 452, held that the engineer’s estimate of the cost of an improvement is sufficiently itemized,. so far as the property owners are concerned, if it is sufficiently specific to give them a general idea of the estimated cost of the substantial component elements of the improvement. This construction of the statute was adhered to in Connecticut Mutual Life Ins. Co. v. City of Chicago, 217 Ill. 352, and there are other cases, both before and since these decisions were rendered, in line with them. In the Hulbert case the estimate of the engineer was- objected to as not being sufficiently itemized. The estimate was, “adjustment of sewers, catch-basins and man-holes, $1139.30,” and in the Connecticut Mutual Life Ins. Co. case the estimate of the engineer, which was objected to- for the same reason, was as follows: “adjustment of sewers, catch-basins and man-holes, and constructing four new catch-basins, $1455.” In both of these cases the objection was overruled, and that ruling was affirmed by this court. In City of Chicago v. Gage, 237 Ill. 328, the estimate was, “constructing one new catch-basin, at $50.” In that case the estimate was objected to because it did not mention that the catch-basin was to be constructed of brick on a two-inch pine-plank floor, connected with the sewer by a nine-inch tile pipe and a Y-branch trapped with a half trap and provided with a cast-iron cover. These specifications were in the ordinance but were not mentioned in the estimate. In that case this court, on page 331, said: “The estimate states that it includes labor and materials, and contains an item for 'adjusting of sewers, catch-basins and man-holes, $485.’ It is not necessary for the estimate to- set out in minute detail all the separate items of material and labor which go into the improvement. Only the substantial component elements of the improvement are required to be placed in separate items,”—citing Village of Oak Park v. Galt, 231 Ill. 482, and Chicago and Western Indiana Railroad Co. v. City of Chicago, 230 id. 9. We are unable to distinguish the above cases from the case at bar.

Appellant insists that a different rule was announced in Doran v. City of Murphysboro, 225 Ill. 514. A careful reading of the Doran case will clearly show- that there was no purpose on the part of this court to overrule or in any way modify the Hulbert and Connecticut Mutual Life Ins. Co. cases. Both those cases are cited and commented on in the Doran case. One of the items of the estimate under criticism in the Dorg,n case was, “570 lineal feet street gutter crossings, at $6.50, $3705.” This was held to be inaccurate, insufficient and uncertain, and an objection raising these points was held to be well taken. There may be some language found in the reasoning of the court in the Doran case from which it might be understood that the court intended to lay down the rule that it was necessary, in the estimate of the engineer, to state the particular kind and amount of material that was to enter into the proposed improvement, but that case should not be so understood. The court has no disposition to depart from the rule laid down in the Hulbert case and others in line with it on this subject. Under this rule appellant’s first objection was properly overruled.

Second—Appellant’s second assignment of error in effect is, that the estimate for “adjusting sewer man-holes and catch-basins and constructing and connecting catch-basin inlets” is unreasonable and excessive. Basing the argument upon the estimate of the cost of the six new catch-basins mentioned in the first objection, the appellant argues that the estimate in this item, is excessive. Some latitude must be allowed for the variation between the estimated cost of an improvement and the actual cost. The most careful estimates will generally prove either too low or too high. (City of Chicago v. Noonan, 210 Ill. 18; City of Nokomis v. Zepp, 246 id. 159; City of Chicago v. Davis, 253 id. 404.) In the last case above cited it was held that to compel the city, when objections are made on the ground that estimates are excessive, to go into' a hearing respecting the price of labor and material and the various conditions which might enhance or lessen the cost of the improvement, would be to construe'the Local Improvement statute in a way not contemplated by the legislature and lead to much vexatious and unnecessary litigation. It was there further held that in the absence of fraud or mistake on the part of those appointed by law to estimate the cost of the improvement, the property owner cannot interpose as a defense that the actual cost would be less than the estimated cost. The appellant has not proven, nor attempted to prove, that the estimated cost of the item under consideration was excessive, and in the absence of clear proof the presumption must be indulged that the estimating engineer has neither committed a mistake nor acted fraudulently in making the estimate. (City of Chicago v. MacChesney, 240 Ill. 174.) This objection is untenable and was properly overruled.

Third—The third error assigned is, that there is no provision made for the removal of obstructions necessary to be removed in order to make the improvement, and this contention is based upon the fact that on a part of the street there is a row of telegraph poles about halfway between the south rail of the street railway track and the south curve, and that that part of the highway is covered with grass and underbrush, the street not having previously been paved. The removal of the grass and underbrush is included in the grading, which is provided for in the estimate and in the ordinance. As to the telegraph poles, there is nothing to show whether they are rightfully in the street or not or that any expense will be necessarily incurred in their removal. The city has power to require the corporation owning said poles to remove them without cost to the city. At least nothing appears in this record showing that the city has in any way estopped itself, by contract or otherwise, to compel the removal of these poles. The third assignment of error cannot be sustained.

Finding no error in the record the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.