Givins v. City of Chicago

58 N.E. 912, 188 Ill. 348

Opinions

Mr. Justice Carter

delivered the opinion of the court:

This is an appeal from a judgment confirming a special assessment for grading, macadamizing and curbing a system of streets in Chicago. The streets were Long-wood avenue from Ninety-fifth street to One Hundred and Seventh street; Walden parkway from Ninety-seventh street to Ninety-ninth street; Ninety-ninth street from Longwood avenue to Wood street; and One Hundred and Third street from South Leavitt street to the right of way of the Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company.

A great number of objections were filed by appellants in the court below, and it is somewhat difficult to determine from the briefs and arguments how many and which of them are insisted on in this court. The most important objection made, however, and urged upon our attention, is that the act of June 14, 1897, entitled “An act concerning local improvements, ” is unconstitutional and void because in conflict, as it is claimed, with section 9 of article 9 of the constitution, which, on this subject, provides: “The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise.” The point made against the statute is, that it undertakes to confer on the board of local improvements the power which the constitution provides shall be vested in the corporate authorities of the municipality, and that such a board is not such corporate authority.

This provision of the constitution is a limitation upon the power of the General Assembly to confer the same power upon any authorities or bodies other than the corporate authorities. (Cornell v. People ex rel. 107 Ill. 372.) And we have held in numerous cases that the corporate authorities upon whom the power of taxation may be conferred, within, the purview of this provision of the constitution, are the authorities of the municipality who are either elected directly by the people to be taxed, or appointed in some mode to which they have given their assent. (Cornell v. People ex rel. supra; Wetherell v. Devine, 116 Ill. 631; Snell v. City of Chicago, 133 id. 413.) It seems clear, without argument of citation of cases, that the board, of local improvements provided for in the act authorizing the creation of such board cannot be held to be the corporate authorities of the city or village, but that, as cities and villages are now organized and governed under the general law for the incorporation of cities and villages, their corporate authorities are the city council of cities and the trustees of villages. But can it be said.that the statute in question purports to vest power in the board of local improvements to make such improvements by special assessments, special taxation or otherwise? If it does not, the act is not unconstitutional simply because it provides for the creation of such a board and commits to it certain preliminary work, mainly in the line of ascertaining the facts necessary for the council to know before determining whether or not to provide for the making of the improvement and the levying of the assessment or special tax. An ordinance duly adopted lies at the foundation of the proceeding, and the board is not vested with any power to adopt an ordinance. That, under the statute, could in this case only have been done by the city council of the city of Chicago. Before the enactment of this statute the council might have required much of this preliminary work to be done by one of its committees, and while some of the former powers of the council in this respect have by the act been taken away and conferred on the board, still no power has been conferred on the board which by the constitution could only be vested in the council. It is certainly no violation of the constitution for the legislature to prescribe conditions to be complied with before the corporate author]ties can make local improvements at the expense of the property owners. It has never been supposed that the provision applicable to cities of less than 25,000, (now 50,000, as amended,) providing that no ordinance for such an improvement shall be adopted unless petitioned for by a majority of the owners of the abutting property, was unconstitutional. In such a case the power to make the improvement or to levy the tax is not vested in such property owners, but the provision is a mere restriction upon the exercise of a power which, when unrestrained, had doubtless often been exercised with great injustice to and oppression of the property owner.

Section 5 of the act is also a restriction upon the exercise of this power. It provides that no ordinance for such an improvement shall be considered or passed by the city council or board of trustees unless it shall have first been recommended by the board of local improvements. If this board has performed its duties it is fully informed of the necessity of the work, of the nature, character and cost of the improvement, and of the views and interests of those whose property is to be assessed to pay for it, before it makes its report and recommendation to the city council or board of trustees. The corporate authorities could not act intelligently in such matter without first having obtained the information which, under the statute, it is the duty of the board to obtain before any ordinance can be adopted by the council. Preliminarily, the property owners have been notified and afforded a hearing'. This opportunity for the property owners to be heard, as a preliminary step in the proceeding, is one of the important provisions of the act. Former statutes contained no similar provision.

It is claimed, however, the council or board of trustees has no discretion under the statute, but must adopt the ordinance as framed and presented by the board of local improvements. This is a misapprehension of the meaning of the act. Section 34 contains the only provision which makes it the duty of the corporate authorities to adopt an ordinance providing for the improvement recommended by the board, and that is confined to cases where the owners of the greater part of the property in any one or more contiguous blocks abutting on the street or public place to be improved shall petition for the improvement. That section provides, among other things, that after the hearing before the board, and after it has determined the nature and cost of the improvement, it shall prepare and transmit to the legislative body, — that is, to the corporate authorities, — “a draft of an ordinance therefor, together with an estimate of the cost, * * * and shall recommend the passage thereof, which recommendation shall be prima facie evidence that all the preliminary steps required by law have been taken; and thereupon it shall be the duty of such legislative body to pass an ordinance for the said improvement, and take the necessary steps to have the same carried into effect.” This provision does not make it the duty of the council to pass an ordinance providing for the improvement because the board of local improvements has recommended it, but because, primarily, the owners of the abutting property have petitioned for it. Nor is it made the duty of the council to adopt the “draft of an ordinance” prepared and presented by the board, but only “to pass an ordinance for the said improvement.” Clearly, this provision of the statute does not vest in such board the power to make the improvement and levy a special assessment or a special tax to pay for it. There is no other section of the statute, so far as we have discovered, which provides what the council shall do when it has received the recommendation of the board and the ordinance which it has prepared, except that section 11 requires that where the estimated cost of the improvement exceeds $100,000 the ordinance shall be referred to the appropriate committee, and, with the recommendation and estimates, published, with the proceedings of the council, at least one week, before any action shall be taken thereon. True, as before said, section 5 contains the negative provision that no ordinance for any local improvement to be paid for by special assessment or special taxation shall be considered or passed unless first recommended by the board of local improvements. But as we construe the statute the city council or board of trustees may, in its discretion, refuse to pass an ordinance submitted and recommended by the local board, notwithstanding it may be that it must pass an ordinance for the improvement where such improvement has been petitioned for by the requisite number of property owners.

That it was not intended by the legislature to vest the power to make local improvements by special assessment or special taxation in the board created by the act is further shown by the first section, where, following, in the main, the language of previous acts, as well as the constitution, which had been previously construed by this court, it is provided “that the corporate authorities of cities, villages and incorporated towns are hereby vested with the power to make such local improvements as are authorized by law by special assessment, or by special taxation, of contiguous property, or by general taxation, or otherwise, as they shall by ordinance prescribe.” We think it is evident that it was not the purpose of the General Assembly to vest these boards with power to make local improvements and to levy special taxes and assessments to pay for them, but, rather, to create a municipal agency to ascertain and determine questions of a preliminary character, which the corporate authorities may not be so well able to ascertain and determine, and which, when so determined, operate as restrictions upon the exercise of the great power over the property of the citizen which the corporate authorities of municipalities possessed. Whether these boards do or will subserve the purpose of their creation does not affect the validity of the statute.

We are of the opinion that the statute does not violate the provision of the constitution above set out, in the respect mentioned.

It is also contended that the ordinance is defective in its description of the parts of streets to be improved, in this: that it does not state the width of what is called the “wings,” at the intersections to be improved. The width of these winrgs would depend on the width of the sidewalk of the intersecting street, and it is said that there is nothing in the record to show what the width of the sidewalk on any of the intersecting streets is. The sidewalks were not to be paved, and the width of the wings so to be paved is a matter of easy ascertainment, as said in County of Adams v. City of Quincy, 130 Ill. 566. See, also, Woods v. City of Chicago, 135 Ill. 582; People v. Markley, 166 id. 48. We think there is no such uncertainty or indefiniteness in the description as to justify a reversal on that ground.

It is also claimed that the court erred in giving to the jury this instruction:

2. “The jury are instructed, as a matter of law, that the board of local improvements, of the city of Chicago is the sole and only judge of the necessity for and of the mode, manner and extent of the improvement referred to in the petition and the ordinance in this case, and the jury are not to consider any question of the necessity for nor of the propriety of such improvement.”

The point urged is, that if this instruction properly construes the statute it renders the law unconstitutional for reasons hereinbefore considered. Conceding that the first part of the instruction was erroneous, still it could not have affected the verdict, for it was still true, as stated in the instruction, that it was not within the province of the jury “to consider any question of the necessity for nor of the propriety of such improvement.” If the instruction unduly magnified the power of the board of local improvements over that of the city council, still it correctly informed the jury as to the limits of their power, and that alone concerned the jury in arriving at their verdict: The only questions for the jury to decide were whether the property of the objectors was assessed more than it would be specially benefited by the improvement, and whether it was assessed more than its proportionate share of the cost of the work. (Hurd’s Stat. secs. 48, 49, p. 366.) The jury, by their verdict, decided both of these questions in favor of petitioner, and while it is claimed the verdict was against the evidence, we see no grounds for disturbing- the finding.

Other questions have been raised which we have considered, but we do not find that any error injurious to appellants was committed.

The judgment will be affirmed.

Judgment affirmed.