171 N.E. 523 | Ill. | 1930
Lead Opinion
The city of Chicago, appellee, filed in the county court of Cook county a petition under the Local Improvement act of 1897 to levy a special assessment for the construction of a combined curb and cement sidewalk between the curb line and the street (lot) line and concrete retaining walls on both sides of Taylor street as and when widened, from the west curb line of South Canal street to the east curb line of South Halsted street, in the city of Chicago. Legal objections filed by appellants were overruled, and the case is here on appeal from a judgment of confirmation.
The chief objection relied upon by appellants below and argued here is, that the provision of the ordinance relating to the construction of retaining walls is indefinite and fails *351 to specify the nature, character, locality and description of the improvement. The provision in question is as follows: "Where any sidewalk is provided by this ordinance to be built on filling adjoining private land, and the surface of such land is more than one foot below the surface of the said sidewalk, a concrete retaining wall shall be built under the said sidewalk and adjoining the private land. The sidewalk shall rest upon the retaining wall, the top of which shall have a thickness equal to one-twelfth the height of the wall, provided that in no case shall it be less than six inches. The bottom of the wall shall have a thickness equal to one-third of the height of the wall, provided that in no case shall it be less than twelve inches. The face of the wall next to the said land shall be vertical. The bottom of the said wall shall be bedded on firm soil." The estimate of the engineer shows, among other things, an item for the construction of concrete retaining wall, 1000 cubic yards, $20 per cubic yard, at a cost of $20,000. The total of the estimate for the improvement is $45,317.47.
At the hearing Nicholas E. Murray testified for appellee that he was, and for twenty-eight years had been, superintendent of construction of sidewalks for the city of Chicago; that in every case where there has been a spread for widening and buildings are erected or moved back there is a space under the basement, and, in order to retain a filling under the walk, retaining walls are necessary in such places; that $20,000 is little enough for the retaining walls here, and if there had to be a wall along the entire street $20,000 would not cover it. On cross-examination Murray stated that neither he nor anyone else could tell from the terms of the ordinance where such walls would be built or knew at the time of the hearing whether any of the retaining walls would be built; that it might so happen that no such walls would be necessary; that none would be necessary now with the dirt filling in, but if in the meantime they should take out any basements, walls would be needed *352 there, and that the engineer in charge of the work would determine where the walls should be built.
John P. McGuern testified for appellee that he was, and for twenty-four years had been, assistant superintendent of sidewalks for the board of local improvements, and that the proposition of $20,000 for retaining walls was necessary and reasonable. On cross-examination he stated that he would not know until they got on the street to do the work where the walls would be built; that experience had taught that the estimate made was fair; that it is impossible to tell what is going to happen when they get on the street to do the work, and there is no telling until then whether there will be some property which will not be in need of a retaining wall.
William J. Caveny testified for appellants that he was a graduate civil engineer, with general engineering experience, and had been in the real estate business about twelve years; that he had built, and was familiar with the construction of, sidewalks in the city of Chicago; that he had examined the petition and ordinance in the present case; that he was familiar with the territory involved; that from inspection of the property he could not find where the 1000 yards of concrete retaining wall is needed, and that in his opinion the provision in the ordinance for retaining wall is unnecessary.
Appellee cites authority in support of the contention made that no fault appears upon the face of the ordinance; that it is in all respects legal and formal; that substantial compliance with the statute is all that is necessary, and some discretion as to details of the work must necessarily be left to the board of local improvements, arguing that the ordinance sufficiently describes the nature, character, description and location of the improvement and is accordingly valid. From the testimony of appellee's own expert witnesses, however, it may be taken for granted that it is impossible to tell from the ordinance itself where retaining *353 walls are to be built or whether any are to be built. The evidence establishes beyond question, and it is admitted, that at the time the ordinance was drafted and at the time of the hearing there was no existing necessity for retaining walls as part of the sidewalk project and that this provision of the ordinance was inserted to meet subsequent contingencies. No authority cited by appellee supports an ordinance including an item constituting more than forty-four per cent of the total estimate, the doing of work under which item is purely contingent upon subsequent happenings and within the discretion of the engineer in charge.
A valid ordinance is the basis of every special assessment under the Local Improvement act of 1897, and if the ordinance is void the court has no power to confirm the assessment. (Village of Lena v. Kable,
In Lundberg v. City of Chicago,
Appellee argues that by virtue of sections 59 and 84 of the Local Improvement act (Cahill's Stat. 1929, pars. 185, 214,) the board of local improvements or its engineer may be held to be vested with such discretion as might be necessary to carry out the provisions of the ordinance in this case. These sections do not purport to confer upon the board of local improvements the discretion for which appellee here contends, and we do not see that they have any proper application to the present record. If section 59, which provides for supplemental assessments, holds any pertinent implication, it would seemingly be against such a course of procedure as appellee has essayed here.
The judgment of the county court of Cook county is reversed and the cause is remanded to that court, with directions to dismiss the petition.
Addendum
The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded, with directions. *356