136 Ill. 563 | Ill. | 1891
Lead Opinion
delivered the opinion of the Court:
On June 19, 1889, the city council of the City of Quincy adopted an ordinance for the paving of Front Street between Broadway and Hampshire Streets, providing therein that the cost should be paid by special taxation upon the real estate contiguous to the improvement. The commissioners named in the ordinance made an estimate of the cost; their report of such estimate was approved by the city council; an order .was entered by the council directing the city attorney to file a petition in the county court for the assessment of the'cost of the improvement in accordance with Article IX of the “Act to provide for the incorporation of cities and villages;” on December 27, 1889, the City by its attorney filed its petition in .the County Court of Adams County for the levying and assessing of the special tax for the cost of the improvement provided for in the ordinance; the county court appointed commissioners to assess and levy a special tax upon the real estate contiguous to and abutting upon the portion of Front street above mentioned; the commissioners filed their report or assessment roll, to which the appellant company, as owner of 650 feet of ground west of Front street and assessed for $3490.50, filed objections; these objections were overruled and the assessment roll was confirmed. From such judgment of the County' Court confirming the report of the commissioners this appeal is prosecuted.
The appellant filed six objections of which the first, third and fourth may be considered together. The first is, that the ordinance is illegal, invalid and void. The third is, that the-ordinance, which provides for the paving of the portion of Front street above mentioned to the width of thirty six feet, fails to show in what part of the street the thirty six feet in width lie. The fourth is, that the ground belonging to ap- . pellant is not contiguous to the improvement named in the ordinance, and, therefore, cannot be specially taxed for the improvement.
Counsel have not pointed out to us how or wherein the ordinance is illegal and void. It specifies the nature, character, locality and description of the improvement in accordance with the requirement of the statute as interpreted by :this court. (City of Sterling v. Galt, 117 Ill. 11). It may ¡he, however, that the third objection was intended to specify more particularly the invalidity charged in the first. It appears from the evidence that Front street between Broadway and Hampshire streets, which intersect it, is 66 feet wide, 'including the sidewalks. It also appears that the municipal Code of 1885 of the City of Quincy (sec. 709, page 220) requires all sidewalks, which may be ordered by the city council, to he constructed under -the superintendence of the city engineer and to he of the width of twelve feet, “unless where they have already been established or may hereafter be ordered some other width by the city council,” etc. Appellant’s point seems to he, that, as the street is sixty six feet wide and the code requires the sidewalks to be twelve feet wide, after taking out of the 66 feet 24 feet for the sidewalks on both sides, there would be 42 feet left, and, as the ordinance requires the street; to be paved to the width of only thirty six feet, six feet are unprovided for, and it cannot be determined in what part of; the 42 feet the 36 feet lie. It is, therefore, argued that the ordinance does not specify the locality and description of the improvement; and the contention that appellant’s land is not. contiguous to the improvement must be based upon the supposition that some part of the six feet is between said land and the 36 feet, as counsel do not otherwise explain their fourth objection.
The proof shows that the sidewalks on the east and west sides of Front street between Broadway and Hampshire streets are 15 feet wide. E. R. Ghatten testifies, that he is and has been city engineer of the city of Quincy for 20 years and has known Front street during that time and before; that the width of the street—66 feet—includes 30 feet for sidewalks, 15 feet on each side; that there has been a sidewalk 15 feet wide on the east side of the street for 25 years; that, on the west side, the side walk consists of the platform of the depot which is 15 feet wide; that the space between the sidewalks, which is used as a street, is 36 feet wide. This testimony is not contradicted, and, in view of it, the ordinance must be regarded as specifying distinctly and definitely where the 36 feet to be paved are located. The portion of the street to be paved is that which lies between the sidewalks as they exist. The ordinance itself provides, that curbstones shall be set on. each side of the street “at the outer line of the respective sidewalks.” Section 709 of the code of 1885 refers to sidewalks which may be thereafter ordered by the city council, and expressly excepts those which, like the sidewalks on the portion of Front street here described, “have already been established.”
The objection that the land of appellant is not contiguous to the improvement is as untenable as the objection that the ordinance does not show the location of the 36 feet to be paved. Appellant’s land lies along side of the west line of the sidewalk on the west side of the street. It is as contiguous to the street when the sidewalk is 15 feet wide as it would be if the sidewalk was 12 feet wide. If land is not contiguous to the paved portion of a street, because it is separated therefrom by a sidewalk, then no street with sidewalks could ever be improved by special taxation of contiguous property.
The second objection is, that the ordinance is void because it violates the rights and privileges granted by the appellee to the Northern Cross R. R. Co., to which appellant claims to be the successor, by virtue of a deed executed by appellee to the said Northern Cross R. R. Co. on July 25, 1855. The portion of the deed in question, which is material to the point here made, is set forth in City of Quincy v. C., B. & Q. R. R. Co. 94 Ill. 537. As will be seen by reference to said case, the City of Quincy granted to the Northern Cross R. R. Co. the “privilege of making and using two railroad tracks in and along that portion of Front street which extends from the north line of Broadway south, etc., * * * said right and privilege to be enjoyed and exercised until the 16th day of October, 1877,” etc. The right or privilege thus granted is the only right or privilege conveyed by said deed to which our attention, has been directed, and, as said right or privilege could only-be enjoyed and exercised until October 16,1877, and has long since ceased to exist by lapse of time, it is difficult to see-how the ordinance violates any rights acquired under and by, virtue of said deed. The second objection is, therefore, without force.
The fifth objection is, that appellant has, “with the consent and permission of” appellee, maintained one or more tracks in the portion of Front street above named “for many years last past” in connection with its business and in the passage of cars and locomotives over the same, and that said tracks are still in use by the company, and are necessary in the operation of its railroad, and that the paving of the street as provided for in the ordinance will prevent the company from using the street where its tracks are laid, and that, therefore, the ordinance is illegal, invalid and void.
The sixth objection is that, by an ordinance passed on June 25, 1873, by the city council of Quincy, the Toledo, Wabash and Western Railway was authorized to lay down and use a track over Front street, and to extend the same so as to connect with any other railroad within the city, and to agree with any other railroad company for the joint use of the same, and that, under said ordinance of 1873, the track, now on the west side of the part of Front street which it is proposed to pave, was constructed many years ago, and, “by mutual agreement between said two railroad companies,” has, for many years last past, been used jointly by them in running their locomotives and cars, and that the pavement about to be laid down will impair the rights granted by the ordinance of 1873, and render it impracticable for appellant to use said track and run its locomotives and cars over the same, and that, therefore, the ordinance of June, 1889, is void.
These objections announce the extraordinary doctrine, that a city loses or surrenders its power to pave or otherwise improve one of its streets if, by tacit consent, or by permission expressed in an ordinance, it has suffered a railroad company to lay down a track in such street, and to use such track for a number of years in running cars and locomotives over it. Such a doctrine is not sustained by reason or authority. The charter of the city of Quincy, as consolidated and amended in 1857, confers the power upon the city council “to lay out, open, alter, abolish, widen, extend, establish, grade, pave, improve and keep in repair streets, lanes, avenues and alleys.” (Private Laws of 1857, page 164, sec. 13). The City has also adopted article IX of the general Incorporation Act in regard to Cities and Villages passed in 1872. Under the authority conferred by the charter, it was the duty of the city to keep all the streets within the corporate limits in a reasonably safe condition for the use of the public. (Village of Marseilles v. Howland, 124 Ill. 547). The power to improve the streets, like other legislative powers, is a continuing one unless the contrary be indicated. (2 Dillon on Mun. Corp.—3d ed.—sec. 686 (543)). The municipal authorities of the city are the exclusive judges of the propriety and necessity of exercising this power. (Dunham v. Hyde Park, 75 Ill. 371).
Under its charter, and without any other legislative act, the city of Quincy had no power to grant any consent, or make any contract, or adopt any ordinance, conferring upon a railroad company the use of one of its streets, if the effect of such consent, contract or ordinance would be to relinquish its own control over such street or to abandon its duty to keep the same in repair. In the ordinance of 1873, upon which appellant relies, the city council evinced its intention to retain the control of the street by the provisions therein inserted, regulating the speed of trains, and prohibiting the standing of cars, locomotives, etc., upon the tracks, or at the street crossings, “in such manner as to hinder, impede, or interfere with free travel along, over or across said street, or any part thereof.” The right given to a railroad company by the council of a city to lay down and use a track in one of the streets is subject to the right of the general public to also use such street. The privilege of the company as thus conferred is not exclusive, hut must be exercised in common with the general public. .The streets are held in trust for the public use, and are public for all purposes of free and unobstructed passage. (2 Dillon on Mun. Corp.—3d ed.—sec. 683 (541)). “For those purposes the city may improve and control them, and adopt all needful rules and regulations for their management and use, but can not alien, or otherwise dispose of them.” (City of Quincy v. Jones, 76 Ill. 231; lireigh v. City of Chicago, 86 id. 407; City of Bloomington v. Bay, 42 id. 503; Watson v. Tripp, 11 R. I. 98.)
Inasmuch, therefore, as the city of Quincy still retained control over Front street, and continued to be under obligations to keep it in repair after permission was granted to the railroad company to lay its tracks, the city council had the right to take measures for paving the street notwithstanding the fact that the railroad had its tracks there and was using such tracks from day to day. It may be true that appellant’s business will suffer serious interruption from the paving of the street, but the inconvenience, to which appellant may be temporarily subjected, can make no difference in the right and duty of the city to make such improvement of the street as it deems necessary. It frequently happens that the business of the individual citizen is injured and interfered with by the construction of a street improvement, but no greater obligation rests upon him, than upon the railroad company, to submit gracefully to such annoyance. On such occasions, the owners of railways, like other parties desirous of using the street, must endure a temporary inconvenience for the sake of a permanent advantage. (Middlesex Railroad Co. v. Wakefield, 103 Mass. 261).
Upon the trial below, the railroad Company placed upon the witness stand James H. Linsey, its road-master, who swore that it would not be practicable to maintain and operate a railroad on Front Street between Broadway and Hampshire .streets, if the street should be paved in the manner contemplated by the ordinance. Whether such testimony was competent and material or not, it was successfully contradicted, by the evidence upon the subject introduced by the City. John B. Nevins, a civil engineer and Superintendent of Public Works in Quincy, Thomas Bedmond Secretary of the Board of Public Works, and E. K. Stone, superintendent of the Quincy Horse Railway and Carrying Company, all testified that the street with the railroad tracks upon it could be paved in the manner specified in the ordinance, and that, after it should be so paved, ears and engines could be run upon the tracks and the railroad could be operated thereon.
The judgment of the County Court is affirmed.
Judgment affirmed.
Concurrence Opinion
I also concur in affirmance of the judgment, but can not consent to the reasoning by which that result is reached in the opinion.
I do not concur in what is said in the opinion.
Concurrence Opinion
I concur in the judgment of affirmance but dissent from much of the reasoning of the foregoing opinion of Mr. Justice Magruder.
