People ex rel. Raymond v. Latham

203 Ill. 9

• Court: Illinois Supreme Court
• Decided: April 24, 1903
• Status: Published

Opinion

Mr. Chief Justice Magruder

delivered the opinion of the court:

Many objections were filed by the appellees to the entry of judgment against their lands upon the trial in the court below. It is impossible, nor is it necessary, for us to notice all of these objections. It is sufficient to refer to two of them, which in our opinion were properly sustained by the trial court and justify its action in refusing judgment of sale against the property of the appellees.

First—The main objection made by the appellees, and which strikes at the validity of the ordinance, under which the improvement in question was to be constructed, is that the ordinance provided for a double improvement.

The ordinance provides for the laying of more than forty separate and disconnected sidewalks, located on some twenty-five different streets in the village of Wilmette and in diverse and widely separated parts of the village, where the physical conditions are dissimilar. It provides for the laying of somewhere in the neighborhood of seven miles of cement sidewalk in the village. A map, introduced in evidence, showing in detail where the walks were to be laid, discloses that the various pieces of sidewalk are disconnected and at long distances from each other. Some of the pieces of sidewalk, whose construction is provided for, were a mile and a half apart and some of them lay west of the tracks of the Northwestern Railroad Company, while others lay east of those tracks. Some of the sidewalks to be constructed were ordered to be laid on improved streets to re-place plank sidewalks. Some were to be laid on improved streets where no sidewalks had previously been built. Others were to be laid on unimproved streets, where there were underbrush and trees upon the line of the proposed sidewalk. On one of the streets, along which sidewalks were ordered ,to be laid by the ordinance, it was necessary to fill in a ditch, some six feet deep and from ten to twelve feet wide at the top, the sidewalk, under the terms of the ordinance, being required to be built where the ditch had previously existed. In some places filling was required to be done, and in others excavation was necessary. The evidence shows that there was little or no communication between residents upon certain streets in one neighborhood where sidewalks were ordered to be laid, and the residents upon other streets in another neighborhood where sidewalks were ordered to be laid; in other words, that by the terms of the ordinance, sidewalks were to be laid in separate neighborhoods.

It thus appears that, in this proceeding, different streets have been combined in the same ordinance, which are so separate and disconnected, that the laying of sidewalks on some of such streets cannot be said to in any way benefit the property situated upon other of such streets.

The ordinance, under which the improvement here in question was to be made, was passed in pursuance of the Sidewalk act of April 15, 1875, entitled “An act to provide additional means for the construction of sidewalks in cities, towns and villages.” The question arises, whether the construction of a number of sidewalks upon different streets under the conditions above set forth can be accomplished under one and the same ordinance. The answer to this question depends upon the construction of the Sidewalk act of 1875, and the intention of the legislature upon this subject, as" disclosed by the,terms of that act.

Section 1 of the act of April 15, 1875, provides as follows: “That in addition to the mode now authorized by law, any city or incorporated town or village may by ordinance provide for the construction of sidewalks therein, or along or upon any street or part of street therein, and may, by such ordinance, provide for the payment of the whole or any part of the cost thereof by special taxation of the lot, lots or parcels of land touching upon the line where any such sidewalk is ordered, and such special taxation may be either by a levy on any lot of the whole, or any part of the cost of making any such sidewalk in front of such lot or parcel of land, or by levying the whole or any part of the cost upon each of the lots or parcels of land touching upon the line of such sidewalk, pro rata, upon each of said lots or parcels, according to their respective values—the values to be determined by the last preceding assessment thereof for the purpose of State and county taxation; or the whole or any part of the cost thereof may be levied upon such lots or parcels of land in proportion to their frontage upon such sidewalks, or in proportion to their superficial area, as may be provided by the ordinance ordering the laying down of such sidewalk; and in case such ordinance shall only require the payment of a part of the cost of such sidewalk to be paid by a special tax as aforesaid, then the residue of such cost shall be paid out of any fund of such city, town or village raised by general taxation upon the property thereof, and not otherwise appropriated.” (1 Starr & Curt. Ann. Stat.—2d ed.—p. 857). The ordinance in the case at bar provides that the cost of the improvement shall be wholly paid for by special taxation on the lot, lots, or parcels of land contiguous to the proposed sidewalk by levying the whole of the cost thereof upon such lot, lots or parcels of'land in proportion to their respective frontages on such proposed sidewalk.

“The act of 1875 provides an entirely different method of levying the special tax from that provided in article 9 of the City and Village act. There is no similarity between the methods pursued.” (People v. Yancey, 167 Ill. 255). “The act of 1875 is strictly a sidewalk statute and is independent of and distinct from the power conferred upon towns, cities and villages under article 9 of the City and Village act, to make local improvements by special assessments. * * * It does not pretend to authorize the improvement of streets in any other way than by the construction of sidewalks.” (People v. Field, 197 Ill. 568). The question has never before been squarely presented to this court, whether the same ordinance can legally provide for the construction of sidewalks upon a number of different streets, rather than upon one street alone, under the act of 1875.

It is true that a single ordinance, providing for paving one or more streets, or providing for a system or common scheme for laying sewers, service pipes or drains has been held by this court to be a valid and legal ordinance. Where, in such case, many streets and parts of streets have been embraced in the scheme of improvement adopted by the city, they have been all regarded as parts of the same improvement. But the cases, where this rule has been announced, and where such double improvements made by a single ordinance have been endorsed and approved, have arisen under other provisions of the law than the Sidewalk act of 1875. Thus, in City of Springfield v. Green, 120 Ill. 269, it was held that an ordinance for the paving of several streets and alleys and parts of streets with the same materials, and in the same way, was not obnoxious to the objection that it embraced more than one improvement. The principle announced in City of Springfield v. Green, supra, was applied to a system of sewerage in Drexel v. Town of Lake, 127 Ill. 54, and Village of Hinsdale v. Shannon, 182 id. 312, and Haley v. City of Alton, 152 id. 113; and to a system of drains and sewers, as in Walker v. People, 170 Ill. 410; and to sewer and water service pipes, as in Palmer v. City of Danville, 154 Ill. 156; and to a main sewer with lateral branches, as in Payne v. Village of South Springfield, 161 Ill. 285. In all such cases, a special benefit is supposed to be conferred upon the property taxed, and in theory, at least, there is supposed to be a common benefit flowing from the improvement as a whole. “In all such cases, the limits of the improvement are within the discretion of the city council, to be fixed by ordinance, subject only to the requirement that the improvement shall be so far single, that, presumptively at least, some benefit will flow from the improvement to the property that is to be subjected to taxation. When the limits of the improvement are fixed by the ordinance, the contiguous property is created by law into a taxing district, and when the tax is to be imposed according to frontage, presumptively each lot, or parcel of land, is benefited by the proposed improvement, and its cost, or such part thereof as is required to be raised by the special tax, is to be apportioned upon such contiguous lots, blocks and parcels of land, in the proportion that the front of each bears to the entire frontage included within the taxing district, and made subject to the tax. * * * The extent of the improvement, and what shall be included within it, and its nature and character, are within the legislative discretion of the city council. Sidewalks on each side of the street may be included as a single improvement, as in Watson v. City of Chicago, 115 Ill. 78; and the improvement of different streets may be included in a single scheme of improvement, as in City of Springfield v. Green, 120 Ill. 269, and Wilbur v. City of Springfield, 123 id. 395. (Burroughs on Taxation, sec. 146; Cooley on Taxation, 450, 451). The limits of the district r.est in the discretion of the legislative power, and the courts will interfere only to correct a clear abuse of the discretion. In theory, (and the practice should in all cases of imposing special taxes conform to the theory), the limits of the improvement should be so fixed, as that the property to be taxed shall receive some benefit from the proposed improvement. Ab- ' solute equality, as already said, is not attainable. But if, in the combination of streets, and the like, they should be so separate and distinct that the making of one could not reasonably be said to benefit property situated upon the other, their combination would be clearly violative of the rule governing in such cases.—Cooley on Taxation, 447-449.” (Davis v.City of Litchfield, 145 Ill. 313). The principle, lying at the bottom of all these cases, is that the combination of streets must not be so separate and distinct, as that the improvement of one cannot reasonably be said to benefit the property situated upon the other. In the case at bar, it cannot be said that the laying of a sidewalk on a street in a distant part of the village of Wilmette can be of any essential benefit to a street or sidewalk in another and entirely different section of the village, and where the two neighborhoods are separated not only by long distances, but by the tracks of a railroad company.

In Watson v. City of Chicago, 115 Ill. 78, an ordinance for the construction of a sidewalk on both sides of the same street was held not to be invalid, as embracing two separate and distinct local improvements, upon the ground that the construction of the sidewalk on one side of the street was of more or less benefit to the property on both sides of the street. In that case, however, the sidewalk was constructed under the general provisions of the City and Village act, as embraced in article 9 thereof, and not under the Sidewalk act of 1875. While the case of Watson v. City of Chicago, supra, held that the construction of a sidewalk on both sides of one street was not a double improvement, it by no means held that the construction of a sidewalk under the same ordinance upon two different streets was not a double improvement, even under the general provisions of article 9 of the City and Village act. That case does not oppose or conflict with such a construction of the Sidewalk act of 1875, as limits the construction of a sidewalk under the latter act to one street.

These words in the act of 1875, to-wit, “any city or incorporated town or village may by ordinance provide for the construction of sidewalks therein, or along or upon any street or part of street therein,” cannot, upon any correct principle of statutory construction, be held to mean that a city or incorporated town or village may, by a single ordinance, provide for the construction of sidewalks upon any number of streets. The word “or,” first used in the clause thus quoted, does not have the meaning of “and,” as seems to be claimed by counsel for appellant. On the contrary, it has the meaning of “that is to say,” or “to-wit.” Anderson in his Dictionary of Law, (p. 737) says: “ ‘Or’ may be used in the sense of ‘to-wit’ explaining what precedes.” The word “or” in a statute is often used in the sense of “to-wit,” that is, in explanation of what precedes, and gives to that which precedes the same signification as that which follows it. (2 Bouvier’s Law Diet. p. 262, and cases cited; see also Commonwealth v. Grey and wife, 2 Gray, 502; Brown v. Commonwealth, 8 Mass. 59). If these rules of construction be applied to the clause in question, it will read as follows: “Any city or incorporated town or village may by ordinance provide for the construction of sidewalks therein, that is to say, along or upon any street or part of street therein.” The statement, that the city or incorporated town or village may by ordinance provide for the construction of sidewalks therein, was intended to confer the power to provide for the construction of sidewalks along or upon any street or part of street therein. Cities and villages would hardly undertake to lay sidewalks except along or upon some street or part thereof. They could not lay them upon private property, nor could a special tax be levied for constructing them in a public park. It necessarily follows that the clause, which provides for the construction of sidewalks in the city or village, means the same as a provision for the construction of sidewalks along or upon any street or part of street in the city or village.

We are not without authority for the construction thus given to the Sidewalk act, nor is this construction any the less correct because of the use of the word, “sidewalks,” instead of the word, “sidewalk,” in the first clause of section 1 of the act of 1875. The provision is not, that the city or village may by a,n ordinance provide for the construction of sidewalks, but that it may by ordinance, that is to say, by the method of ordinance, provide for the construction of sidewalks, not necessarily meaning that a number of sidewalks may be provided for in one and the same ordinance. In Arnold v. Cambridge, 106 Mass. 353, a statute of the State of Massachusetts provided that “whenever the mayor and aldermen of the city of Cambridge shall deem it expedient to construct sidewalks or complete any partially constructed sidewalks in any street of said city, they are hereby authorized to construct or complete such sidewalks with edge stones, and in front of buildings or occupied premises to cover the same with brick or flat stones,” etc. It will be observed that the Massachusetts statute uses the words, “to construct sidewalks,” and also uses the words “in any street of said city,” and, in the use of these words, is precisely like the Illinois Sidewalk act of 1875. In the case of Arnold v. Cambridge, supra, the Supreme Court of Massachusetts, giving construction to their statute as thus quoted, said: “The vote, under which the proceedings in this case have been had, provides for a sidewalk from Harvard Square to the end of the bridge connecting Cambridge and Boston. It is treated in all the preliminary proceedings, and in the final assessment, as a continuous and single sidewalk, but it is really a sidewalk part of which is in Harvard and* part in Main street. We do not undertake to decide what weight we should attach to any objection on this account, if it were merely the case of one single street called by different names in different portions of its course or length. But Harvard street and Main street are two entirely distinct and separate highways, which, although they unjte at one point, yet form two lines of travel nearly parallel to each other for about two miles. We do not think that the statute was intended to give the mayor and aldermen the power to include sidewalks in two different streets in one single assessment. If two streets may be so assessed, it is difficult to see why three or more may not be included in one single assessment, or why all the sidewalks in the city may not be included in one comprehensive assessment. It was evidently intended by the legislature that the case of each street should be considered separately, and with a view to its own special circumstances. Each estate is liable to assessment, not necessarily for the expénse of the edg'e stones and covering materials laid down on that portion of the sidewalk upon which it adjoins or fronts, but according to a just proportion of the collective amount of all that kind of expense incurred on the same side of the same street. We cannot know that this proportion might not be very different, if other streets were to be included in the same assessment. It may be that practically there would be no danger of any injustice or inequality in the assessment; but the legislature have only given to the board of aldermen a limited authority over the subject matter. The power to treat two sidewalks in two distinct streets as one, for the purposes of assessment, is not given by the statute.” The case of Arnold v. Cambridge, supra, was endorsed and approved of in the subsequent case of Wilbur v. Taunton, 123 Mass. 522.

The language, used in the quotation from Arnold v. Cambridge, supra, is precisely applicable to the case at bar. The act of 1875 was not intended to give the power to the common council to include sidewalks in two different streets in one single assessment. If this were so, then provision could be made for the laying of sidewalks in all the streets of a city under one ordinance, even though the different walks are entirely disconnected and do not form parts of the same system. It would hardly be contended that sidewalks could be laid on a street at the extreme north side of the city of Chicago and in another street at the extreme south side of the city of Chicago under one and the same ordinance, and the total cost be apportioned according to the entire frontage. If sidewalks can be laid on more than one street under the same ordinance where the walks are wholly disconnected, it is difficult to see where the limit as to the number of streets to be provided for in one ordinance can be drawn.

The construction, thus given to section 1 of the Sidewalk act of 1875, receives support from the language used in section 2 of that act. Section 2 provides as follows: “Said ordinance shall define the location of such proposed sidewalk with reasonable certainty, shall prescribe its width, the materials of which it shall be constructed, and the manner of its construction,” etc. This language certainly refers to one sidewalk, and not to several'sidewalks, and has reference to the location and width of one sidewalk and to the materials of which one sidewalk shall be constructed.

Second—The evidence upon the trial below showed that the sidewalks, provided for by the ordinance, were not completed when the bill of cost was filed, nor at the time of the application for judgment. The objection is made by the appellees that, where the entire cost of building a sidewalk is provided by ordinance to be apportioned to the lots abutting thereon according to their frontage, all the sidewalk provided for in the ordinance must be constructed before the bill of cost can be made out. Such was the holding of this court in Craig v. People, 193 Ill. 199, where it was said: “The evidence was that the sidewalk was not completed when the bill of cost was filed, nor at the time of the application for judgment. As the entire cost of the whole walk was to be apportioned to the lots according to their frontage, it could not have been ascertained at that time. No certified bill of the cost of the sidewalk could be made before it was completed, when the city engineer attempted to file such bill with the city clerk.”

In the case at bar, the proof showed that the total number of feet of walk to be laid under the ordinance was 36,750; that of these 12,150 feet had been laid by the property owners themselves; and that 22,200 feet were included in the public contract let for the construction of the work, which was not done by the owners themselves. It is conceded that of the 22,200 feet, for the construction of which a public contract was let, 2400 feet have not yet been laid.

Appellant insists that about 400 feet of the 2400 feet not yet completed was abandoned by the village, but no evidence of such abandonment appears in the record, so far as we have been able to discover. The ordinance, providing for the making of the improvement, was passed on July 17, 1900; and it is said that, subsequently, on August 21, 1900, a resolution was passed, providing that a contract should not be let for the remaining 2000 feet which had not been laid, and that this resolution operated as a repeal of the ordinance as to the sidewalks specified in the resolution. But it is well settled that an ordinance cannot be repealed or amended or suspended by a resolution. (Hibbard & Co. v. City of Chicago, 173 Ill. 91; Chicago and Northern Pacific Railroad Co. v. City of Chicago, 174 id. 439; People v. Mount, 186 id. 560).

It being true, then, that all the sidewalks provided for in the ordinance were not completed when the bill of cost was filed, nor at the time of the application for judgment, it follows that the doctrine of Craig v. People, supra, is applicable to the case at bar. All the walk, provided for in the ordinance, must be constructed in order to ascertain the proportion to be levied against any particular lot. Where property owners are required to pay a proportion of the entire cost of an improvement rather than the actual cost of the construction of the same in front of their own property, the theory is that the entire improvement, and not merely that part of it which is in front of each particular lot, is a benefit to such lot; and it, therefore, follows that, if a portion of the improvement is not completed, each property owner has failed to get a portion of the benefit to be derived from the improvement, whether the same is completed in front of his particular lot, or not. The objection, therefore, based upon the fact, that all the sidewalks provided for in the ordinance had not been laid, was properly sustained by the court below.

For the reasons above set forth, the judgment of the county court is affirmed. Judgment affirmed.