104 Ill. 549 | Ill. | 1882
delivered the opinion of the Court:
This case comes here by appeal from the Appellate Court for the First District. Application was made in the county court of Cook county for judgment of confirmation of a special assessment, and that court sustaining exceptions of appellees to the commissioners’ report, refused to give the judgment sought against the property in question of appellees. This judgment was affirmed by the Appellate Court.
The record shows that on the 20th of May, 1879, a contract was entered into between William E. Shaw, of the first part, and “the owners and representatives of property on West Monroe street and Oakley avenue, ” of the second part, whereby said Shaw covenanted and agreed, “for and in consideration of the payments to him to be made by the parties of the second part, ” as thereinafter set forth, “to fill, curb with curb-stones, grade, and pave with wooden block pavement, in front of the property owned or represented by the parties of the second part on said West Monroe street,. between Eobey street and Oakley avenue, ” according to certain specifications. The work ivas to be done “under the supervision of the department of public works of the city of' Chicago, and to its satisfaction and acceptance. * * * The said second parties, each for himself, agrees to pay said first party the following amounts when said wTork shall be completed in front of the property which they own or represent. ” The contract is signed “William E. Shaw, party of the first part, ” and in the folloAving form by the others, the last being the signature purporting to affect appellees’ property:.
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On the 10th of September, 1879, the city council, by a vote of thirty in the affirmative to one in the negative, being a majority of more than three-fourths of all the aldermen elected, adopted the following:
“Whereas, the owners and representatives of three-fourths of the property fronting on West Monroe street, betAveen Oakley avenue and Eobey street, have made a private contract with W. E. Shaw to curb Avith curb-stone, grade, and pave said West Monroe street Avith white pine blocks, the blocks to be six inches long, and to be set oh one inch sound pine boards, with sand under the same for bedding, using lake shore gravel between the blocks, and for top-dressing the same. Therefore be it ordered, that the commissioner of jrablie works grant a permit to said W. E. ShaAV to curb, grade and pave said West Monroe street, between said points, and to enter into a contract with said W. E. Shaw for the city’s portion of said work, at a price not to exceed the price named in said contract. And it' is further ordered, that the commissioner of public - works prepare and report to this council a proper ordinance for making the same kind of' improvement in front of the property not represented in said private contract, between said points on said West Monroe street, and enter into a contract with said W. E. Shaw for curbing, grading and paving the same, at a price not to exceed the price named in said private contract, payable only from the special assessment for said work, when the same shall be collected,—all costs for engineering and inspecting to be paid by the contractor. The said curbing, grading and paving to comply in all particulars with the city ordinances.
The ordinance prepared and adopted pursuant thereto is not set out in the record. But on the 14tli of May, 1880, Shaw executed to, and filed with, the city a bond, in the condition whereof, among other things, is the following: “The condition of the above obligation is such, that whereas the above bounden William E. Shaw has entered into a certain contract with the owners of the property abutting on West Monroe' street, between Robey street and Oakley avenue, in the city of Chicago, bearing date the 29th day of May, A. D. 1877, for curbing, grading and paving the above named street between said points, a copy of which is hereto annexed, for which work, and the cost and expense of the same, the said Shaw relies solely on his said contract, the city of Chicago not to be in any way responsible or liable therefor. ”
In passing upon the questions presented by this record, the first inquiry is, what is meant by the words “representatives of property, ” as used in the contract between Shaw and the city, and in the order of the city council ? Counsel for appellees insist that it nyans only those who assume to represent property, while counsel for appellant contends it means only those who have legal authority to represent the property and bind the owners by their undertaking,—and we have no doubt this is the correct interpretation of the words. The contract with the private parties and the contract with the city were evidently intended to include the entire work, and Shaw expected to be paid by the one or the other for every part of the work. It was not expected Shaw was to do any of the work for nothing, and it was expected, the condemnation of the city would secure payment from all the property not included within the private contract. The owner of the property bound himself by contract, and the only possible object of which we can conceive for contracting with representatives of property is, that they might bind the owners of the.property, for in legal presumption the improvement was for the benefit of the owners, and we can not presume the mere representatives of property had any personal interest in the improvement. The price to be paid was graduated by extent of property,—or, in other words, by interest of owner, —and the burden is one that falls upon the owner. “Representative,” we must therefore assume, means, legally, and when here used was intended to mean, what the term imports,—that is, one having lawful authority to act in behalf of the property and bind the owner in regard thereto—not merely one having no such authority, but assuming to have it.
Passing from this inquiry, we come next to the objection that the contract was not let to the lowest bidder. But when it is determined that the term “representatives of property” means only those who have legal authority to act in behalf of the property, and. bind the owner with reference thereto, it must follow the property here in question was not included in the contract made between Shaw and the private parties, but must have been included within the contract between Shaw and the city. The assessment is itself, at least, prima facie evidence that this property is lawfully assessed, and the burden is upon appellees to show that it is not so assessed. Doubtless this might have been done by showing a contract between, Shaw and the owner of the property, either made in person or through a legal representative; hut this has not been attempted. No-one pretends that Newton Burke had any authority to bind the owners of this property by a contract with Shaw, in regard to paving the street in front of the property. If this property is included in the order of the city council, and in the contract between Shaw and the city, it was not necessary that the work should have been let to the lowest bidder, because they were adopted by a vote of more than two-thirds of all the aldermen elected. Rev. Stat. art. 9, chap. 24, sec. 50.
So, also, in this view, the objection that the object of the assessment, is to pay for work done under private contract, is untenable. This work was not contracted to be done by private contract.
We perceive no sufficient reason why this property should not bear its just proportion of the burden of making this improvement. It has the full benefit of the improvement, and its owners have not, as have their neighbors, contributed thereto.
The judgment of the court below is reversed, and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed.
