178 Ill. 549 | Ill. | 1899
delivered the opinion of the court:
Plaintiffs in error ask us to reverse a judgement entered by default, confirming a special assessment against their property for paving Harding avenue, in Chicago, because the court had no jurisdiction to enter the judgment. One reason alleged is, that the ordinance is void for a failure to specify the height of the curb, which is a part of the combined gutter and curb on each side of the roadway. The ordinance is not subject to the objection. It provides that the surface of the pavement at the center of the street shall conform exactly to the established grade of said Harding avenue and shall descend to the gutter line with a pitch of one inch to each three feet; that the gutter flags shall be eighteen inches in width and have a pitch corresponding to the crown of the street, and that the top of the curb shall be at the said established grade of Harding avenue. Here are all the data necessary to determine the depth of the gutter and the height of the curb. The top of the curb and the surface of the pavement at the center of the street are to be on a level at the established grade, and the depth of the gutter and height of the curb will be one inch for each three feet of width from the center of the crown of the street to the gutter line.
Another objection is, that the ordinance is void for a failure to fix the grade at which the improvement is to be made. The provision, as already seen, is, that the improvement shall conform exactly to the established grade of the avenue, and the objection seems to be that the ordinance does not sa)r that such grade was established by an ordinance on file in the city clerk’s office. It is not the purpose or function of an ordinance providing for an improvement upon a street to fix the grade of that street, and it has never been deemed necessary that in the body of such an ordinance the details of an established grade must be set out. (City of Carlinville v. McClure, 156 Ill. 492.) A city is authorized to establish the grades of its streets independently of any improvement, and the importance of showing the grade in an ordinance for an improvement is to show what amount of excavation and filling will be required, so that an intelligent estimate of cost can be made. The establishing of a grade for Harding avenue, being a permanent matter of a legislative character, could only be done by an ordinance, and a reference to an established grade is necessarily a reference to some ordinance of the city establishing the same. The right to refer to an ordinance fixing" the grade, instead of setting out all the particulars of such grade, has never rested upon any particular provision of a statute authorizing it, but upon the ground that it would be useless to repeat in detail the provisions of other ordinances. It is true that the statute does not provide for reference to an ordinance establishing" a grade, while it does authorize a reference to maps, plans, profiles or specifications on file in the office of the proper clerk. This is to authorize a reference to such papers for details of the improvement which would otherwise have to be inserted in the ordinance. But where a grade has been established by ordinance and the ordinance for the improvement requires it to be at that grade, the commissioners estimating the cost will take notice of such established grade, just as they would of streets or intersections established by other ordinances. (White v. City of Alton, 149 Ill. 626; Haley v. City of Alton, 152 id. 113; City of Carlinville v. McClure, supra; Chicago and Northern Pacific Railroad Co. v. City of Chicago, 172 Ill. 66.) As the act establishing the grade must necessarily have been by ordinance, we do not see what possible difference it could make that the word “ordinance” is not mentioned, or how commissioners or bidders would be better informed if the word were used without giving the title of such ordinance or the book or page where it is recorded, which is not claimed to be necessary. If it should be shown on a hearing that there was no ordinance establishing a grade it would be a good defense to an application for judgment, (Chicago and Northern Pacific Railroad Co. v. City of Chicago, 174 Ill. 439,) but, so far as the ordinance itself is concerned, we regard the provision that the improvement shall be at the established grade as sufficient.
It is also argued that the petition is insufficient as a basis for the judgment because a copy of the report to the city council of the commissioners appointed to make an estimate of the cost of the improvement annexed to the petition shows that John J. Flagg, one of the three persons appointed to make the estimate, did not act, but that another person acted in his place. The copy annexed to the petition appears to be signed “J. H. Flagg,” and this is the ground for claiming that he was a different person from the one appointed. So far as the middle initial appearing in the ordinance or the report is concerned, it has no tendency to prove the fact alleged, because it is no part of the name. The common law recognizes but one Christian name, and a middle initial may be dropped and resumed or changed at pleasure. It is not material in any legal proceeding, and its presence or absence or a difference in it does not create a variance. (Thompson v. Lee, 21 Ill. 242; Erskine v. Davis, 25 id. 251; Humphrey v. Phillips, 57 id. 132.) In Miller v. People, 39 Ill. 457, the indictment charged a robbery of Isaac R. Randall and it was proved that the robbery was committed on Isaac B. Randall. It was there contended by counsel, that althoug'h unnecessary to insert the initial R. in the name of the party robbed, yet as it was inserted and the initial was different there was a variance. The court did not agree with counsel, but said that the letter was no part of Randall’s name and that there was no variance. The middle initial J. in the ordinance and H. in the signature being disregarded, the question must be considered as if the ordinance appointed John Flagg and the report was signed J. Flagg, and such a difference has never been regarded as creating a variance or showing that there were two persons. While a letter of the alphabet does not in itself constitute a name, yet the initial letter of the Christian name is so commonly used that it is to be regarded, not as the name of another person but as an abbreviation of the Christian name. Lee v. Mendel, 40 Ill. 359.
The objections made do not warrant a reversal, and the judgment of the county court is affirmed.
Judgment affirmed.
Mr. Justice Magruder, dissenting.
