| Ill. | Oct 26, 1903
delivered the opinion of the court:
A motion was made in this court to dismiss this appeal for want of jurisdiction, upon' the ground, first, that appellant had no right of appeal; and secondly, upon the ground that the judgment of the county court entered July 3, 1901, sustaining objections to the assessment under the original ordinance, pursuant to the remanding order of this court, was res judicata.
In support of their motion to dismiss, appellees cite and rely upon sections 95 and 96 of the act of 1897, in relation to local improvements by special assessments and special taxation. (Hurd’s Stat. 1901, p. 399.) Section'95 relates to appeals and section 96 relates to writs of error. Section 95 by its language authorizes an appeal to the Supreme Court “by any of the owners or parties interested in lands taken, damaged or assessed therein,” and section 96 authorizes a writ of error from this court on the application of “owners or parties interested ih the property affected thereby,” and it is said that as in each of these sections the only persons named are the owners of the lands or parties interested therein, there is no statutory authority for the city to prosecute this appeal, and that, the right of appeal being a statutory right, the appeal should be dismissed. The question here.urged was before this court in the case of City of Bloomington v. Reeves, 177 Ill. 161" date_filed="1898-12-21" court="Ill." case_name="City of Bloomington v. Reeves">177 Ill. 161, where the statute cited by appellees and the various statutes authorizing appeals were reviewed and fully considered, and Mr. Justice Craig, speaking for the court, in part said (p. 163): “It is apparent that there is no provision of the act which au-. thorized the city, when it happened to be defeated in the county court, to appeal, and if the right of appeal depended solely on the act under which the proceeding was instituted, then the appeal could not be maintained. But we do not think that the right of the city of Bloomington to appeal depends on the act. Section 213 of the act relating to courts (Hurd’s Stat. 1897, p. 527,) provides: ‘Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county court to the Supreme Court or Appellate Court in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer. ’ (See, also, sec. 89, chap. 110, p. 1217.) These sections of the statute, which expressly allow either party an appeal in a case like the one under consideration, have never been repealed, and under them the city of Bloomington had the right of appeal. If the legislature had intended to cut off all right of appeal on behalf of a city where it was defeated in the county court, these two sections of the statute doubtless would have been modified or repealed. This not having been done, it will be presumed the legislature intended to preserve the right of appeal in the city as it existed heretofore. The motion to dismiss the appeal will be denied.”
As to the second ground upon which this motion is predicated, we cannot yield our consent to the contention of appellees. The case having been brought to this court upon appeal by appellees, we held the ordinance defective and reversed the judgment of the county court confirming the assessment under that ordinance atid remanded the cause to the county court. When the cause was re-docketed appellees again filed objections, which the county court, following the decision of this court reversing the cause, sustained and entered its order to that effect, but at the same time and as a part-of the same order gave leave to appellant to file a supplemental petition. It does not appear that there were hearings upon any matters of fact at that time, and the order itself shows, as we think, that the court sustained the objections in obedience to and in conformity with the judgment of this court remanding the cause, and that such judgment, when entered in pursuance of such remanding order, cannot now be said to be such a final judgment, if not appealed from, as could be relied upon as res judicata. To hold otherwise would.be to say that there could never be an end of appeals. The motion to dismiss was denied, and upon mature reflection we are satisfied that the order was proper.
The insistence that, inasmuch as the assessment under the original ordinance was confirmed in December, 1895, there was no cause pending to bring the case within the saving clause found in section 99 of the act of 1897 is not tenable, if we are able to comprehend the point made by counsel or the line of their argument. 'From the judgment confirming that special assessment an appeal was prosecuted and pending in this court when the act of 1897 was passed, and the cause was as much pending as if it had remained in the county court and undisposed of all that time.
Appellant relies upon sections 57 and 58 of the Local Improvement act of 1897 as the authority for the ordinance and assessment now appealed from. Those sections are as follows:
“Sec. 57. Vacation of assessment—Neto assessment.] If any assessment shall be annulled by the city council or board of trustees, or set aside by any court, a new assessment may be made and returned, and like notice given and proceedings had as herein required in relation to the first; and all parties in interest shall have like rights, and the city council or board of trustees, and the court, shall perform like duties and have like power in relation to any subsequent assessment as are hereby given in relation to the first assessment.
“Sec. 58. New assessment for completed work.] No special assessment shall be held void because levied for work already done under a prior ordinance, if it shall appear that such work was done in good faith, by the contract duly let and executed, pursuant to an ordinance providing that such improvement should be paid for by special assessment or special tax. This provision shall only apply when the prior ordinance shall be held insufficient for the purpose of such assessment, or otherwise defective, so that the collection of the assessment therein provided for becomes impossible. A new or special ordinance shall in such case be passed, providing for such assessment, and such ordinance need not be presented by the board of local improvements.”
To authorize an ordinance for a new assessment under the foregoing sections it must appear {a) that the work was done in good faith by contract duly let and executed pursuant to an ordinance providing that such improvement should be paid for by special assessment; (&) that the prior ordinance shall be held insufficient for the purpose of such assessment, or otherwise defective, so that the collection of the assessment therein provided for becomes impossible; (c) that the original assessment be set aside by some court; {d) that a new or special ordinance be passed providing for such new assessment; (e) that a new assessment be made and returned and like notice given and proceedings had as are required in relation to the first ordinance and assessment, except that the same need not be originated or presented by the board of local improvements.
Appellees, however, say that the work under the original ordinance was not done in good faith, and in support of that contention show certain deviations in the performance of the work from the strict letter of the ordinance. For instance, it is said by the ordinance that the pavement should be rolled by ten-ton rollers, and the evidence discloses that it was rolled by a five-ton roller. The provision of section 58, supra, is, that a new assessment to pay for the improvement shall be made and shall not be held void “if it shall appear that such work was done in good faith, by the contract duly let and executed, pursuant to an ordinance providing that such improvement should be paid for by special assessment.” The record shows the prior ordinance, the letting of the contract and the performance of it to the satisfaction of the city authorities and the full acceptance of the work by the city, and there is no evidence showing bad faith on the part of the contractor. Wherever there was a deviation from the strict letter of the ordinance, contract and specifications, as to the manner of performing the work, it was upon a good and sufficient reason appearing in the record, of which the city had notice and to which it assented. As an instance, the ten-ton roller could not be used because the nature of the soil and the foundation required by the ordinance and contract were such that the blocks would be pressed out of place and the pavement made uneven by such great weight. The inspectors were advised of this and assented to the use of a five-ton roller. The evidence shows such roller to have been the proper one to use in that particular work, and the county court was warranted in finding that the work was done in “a good and workmanlike manner.”
Appellees object to this proceeding, and say that by the order of court appellant was authorized to file a supplemental petition, and from that argue that the legal inference arises that the court only authorized a petition to be filed under section 59 of the Local Improvement act, which relates to supplemental assessments where the first assessment proved insufficient, and they insist that there is a conflict between the order of the court and the ordinance and petition that were filed. Appellees’ counsel says: “I do not think that the terms ‘new assessment’ and ‘supplemental assessment’ are interchangeable. A new assessment is not provided for under section 58 of the act referred to, while the authority for a supplemental assessment is contained in section 59.” A supplemental petition would be any petition filed subsequent to the original petition and in aid of the same improvement. Counsel for the appellees seems to confound supplemental petition and supplemental assessment, and attempts to contrast supplemental petition and new assessment. The court could only allow a supplemental petition to be filed that should be authorized by the statute, and the one authorized under the conditions of the case, as it was then passed upon, was under sections 57 and 58 for a new assessment, on the ground that the assessment had been set aside by the court. The supplemental petition was for a new assessment in supplement and aid of the first assessment, part of which had been set aside. It does not matter what was the cause of setting aside the original assessment or the particular defects thereof that caused the deficit. If the facts and record were such that a new assessment was authorized to pay for the work already done, then that matter was properly brought before the court by a supplemental petition.
It is next urged that the original ordinance was declared void by this court, and that a void ordinance can not serve as a basis for a new ordinance calling for a new assessment. If the contention as to the fact is true, the position as to the law will be admitted. But such does uot seem to be the fact from an inspection óf this record. The original ordinance was held to be defective—not void. The opinion of this court does not state whether it is defective or void, but decides the case upon the authority of Kuester v. City of Chicago, 187 Ill. 21" date_filed="1900-10-19" court="Ill." case_name="Kuester v. City of Chicago">187 Ill. 21, in which it is said that the ordinance is defective. A careful reading of the cases in which this court has passed upon this and like ordinances will show that for mere inaccuracies of description such ordinances have not'been held void, but that they have been held so defective that it was proper to refuse a confirmation of the assessment upon that ground. The question has frequently arisen in special assessment cases where application was made for judgment to sell property, and defects such as were in the original ordinance in question here were urged as grounds of defense against the entering of judgment, on the ground that the ordinances were void. We have held that where the ordinance is void it may be collaterally attacked, but where it is only defective a judgment of confirmation thereon cannot be attacked on an application for judgment for sale. (Blount v. People, 188 Ill. 538" date_filed="1900-12-20" court="Ill." case_name="Blount v. People ex rel. Raymond">188 Ill. 538; Foster v. City of Alton, 173 id. 587; Gross v. People, 172 id. 571; Rich v. City of Chicago, 187 id. 396.) The matters complained of against the original ordinance in question were purely matters of description and were not matters' of substance, and the judgment of this court was that the ordinance was defective. It will be presumed that all the objections that could have been urged against the original ordinance were urged ag'ainst it on that appeal, and we will not again examine it to determine' if there might not be other objections. The rule that cases shall not be tried by piecemeal is a necessary rule and one that obtains in all courts of appeal, and where, as in this case, on appeal, the validity of the ordinance was attacked and passed upon, the court will not in another appeal take up the same ordinance again and review it and pass upon the validity oí its provisions.
It is next insisted that the new ordinance did not amend the defects of the first or original ordinance, and that the same defects in the description of the proposed improvement remained without any ordinance supplying them, and that for that reason the judgment of the county court should be sustained. There is no contention that the improvement was not placed upon the street and between the points designated by the original ordinance or that it was not of the general character therein provided for, but it is said that the work was not done in strict compliance with the provisions of the first ordinance and that there was no ordinance providing for portions of the work as done, and under this head are pointed out the making of gutters, catch-basins and intersections of streets. It is also said that the work was not performed in strict compliance with the provisions of the original ordinance, in that some of the curbing line was irregular and that the curbing leaned an inch or two toward the street, and that there were cracks in the pavement, and that the roller used was a five-ton roller instead of a ten-ton roller. These matters relating to mere defects in workmanship could hardly be urged against the validity of an ordinance or the right to make a new assessment to pay for whatever was done and accepted by the city. Appellees, in their objections set up at the time of the filing of the mandate from this court, expressly declared that the work had been completed and accepted by the city and that vouchers had been issued to and accepted by the contractors, and urged these matters as grounds for not confirming the assessment; and upon a hearing of the cause now before the court under the new ordinance, the evidence fully shows that the work was duly accepted by inspectors employed by the city and was pronounced by them as being done in compliance with the ordinance and specifications, and was fully accepted by the city as satisfactorily done and vouchers were issued for the payment. The evidence also explains, as we think, all the departures from the strict letter of the specifications and contract, and shows that it was complied with as strictly as the conditions of the soil and location of the work would admit. But, at all events, we do not see how these mere departures in the details of the work or the manner of performing it could be a bar to this proceeding for the new assessment if the work was in fact acceptably done in accordance with the plans and specifications and accepted by the city, and the judgment of the county court expressly finds “that said improvement was constructed in a good and workmanlike manner and was accepted by the proper officers of the municipality, the city of Chicago,” and the new ordinance contains alike declaration. Manifestly, those things could not be cured by any ordinance that could be passed by way of amendment. The matters of description of the character of the work, as to street intersections, and the top of the grade line, curb, and the description of the flat stones upon which the curb was to rest, might have been amended and more specifically set out by the second ordinance, but we can see no beneficial purpose that would have been served by such amendment. The work was already done. The improvement was in, and any ordinance that sought to amend the first ordinance would have been one simply describing the improvement as made. In the case of Markley v. City of Chicago, 190 Ill. 276" date_filed="1901-04-18" court="Ill." case_name="Markley v. City of Chicago">190 Ill. 276, there were other defects than the selection of improper commissioners alleged against the ordinance, and among them was the defect that the flat stones were not particularly described in the original ordinance and that the new ordinance did not attempt to amend the old in that regard, and we said of it (p. 282): “We do not see how it would benefit appellant to have these stones now particularly described by way of-amendment. The improvement has actually been made and the exact kind and si^e of the flat stones have been determined by the improvement actually in place. It would not tend to the protection of the appellant or any other property owner by requiring the amendment of the original ordinance in a minor matter of detail, such as setting out the kind or size of the flat stones.”
The complaint in the case at bar that the street intersections were not excepted when the curbing was provided for seems to us to fall within the same class of objections and defects. It would be hard to conceive of a contractor who had so little intelligence as one that would bid upon a public improvement, like the paving of a street, and not know that the curbs on the sides of the street were not to extend across street intersections. The evidence shows that they were not put there, but that they were put as they should have been,—to the street lines. The Markley case was very much like the case at bar, and did not go to the extent, even by way of recital or otherwise, of describing the former ordinance and the proceedings had under it, that the ordinance now before us does. We have held in other cases besides the Marleley case that it is not necessary to describe the improvement by the new ordinance. West Chicago Park Comrs. v. Farber, 171 Ill. 146" date_filed="1897-12-22" court="Ill." case_name="West Chicago Park Commissioners v. Farber">171 Ill. 146; Freeport Street Railway Co. v. City of Freeport, 151 id. 451.
When the case was re-docketed in the county court and the mandate of this court was filed there, the objection was filed and insisted upon that the proceeding was invalid because the contract provided that eight hours should constitute a day’s labor and that none but native born or naturalized citizens should be employed upon the work. It is now insisted by appellees that the proceedings are void and that this ordinance cannot be sustained because paragraph 10 of chapter 6 of our statutes, entitled “Aliens,” was not complied with. (Hurd’s Stat. 1901, p. 141.) That paragraph provides that “it shall be unlawful for any * * * officer * * * acting for * * * any city, * * * or'any contractor, or sub-contractor, under any or either of said municipalities, to employ any person or persons, other than native born or naturalized citizens, or those who have in good faith declared their intentions to become citizens of the United' States, when such employees are to be paid, in whole or in part, directly or indirectly, out of any funds raised by taxation.” Paragraph 11 of the same statute requires any one employing labor to be paid out of the public funds, to make a list of the persons so employed, showing that they meet the requirements of the foregoing" paragraph, and paragraph 12 fixes a penalty for a violation of paragraph 11. Appellees took evidence showing that this statute was not complied with, and insist that as these public funds go to the contractor who violated that law, the ordinance cannot be sustained. A similar law was enacted by ordinance in the city of Chicago, and we have repeatedly* held that such law is invalid, as it is in contravention of the constitution and the right of individuals to contract. The statute in question is void upon the same grounds, and neither the city nor the contractor was under any obligation to observe it.
In the preamble to the ordinance in question it was found that there was a balance of $8828.06 due for the work and that there was interest to the amount of $1324.20, and the ordinance in question provided for the levying of an' amount sufficient to pay both the principal sum and the interest thus due. The vouchers issued by the city were non-interest bearing vouchers, and there was no authority, in law, for paying interest upon them. It may be that it was an equitable thing to do, but such considerations cannot control in a statutory proceeding. The ordinance sufficiently specifies the portion that is for interest, so that it may be separated from the principal sunt that was unpaid, and we think that in so far as it attempted to levy an assessment for interest the ordinance was void, but that as the amounts are expressly stated by the ordinance itself, so that the portion that is void or the amount which is levied without authority can be ascertained by an inspection of the ordinance, it is unnecessary to declare the whole ordinance void on that account. Under section 52 of the Local Improvement act the court had authority to modify and change the assessment by refusing to confirm that portion of it that was sought to be collected as interest and affirm it as to the amount that was due upon the work.
In the view that we entertain of the case the judgment of the county court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.