138 Ill. 295 | Ill. | 1891
delivered the opinion of the Court:
This is an appeal from a judgment of the county court of 'Cook county, confirming a special assessment levied for the purpose of paying for the construction of a sewer in the village of Park Ridge, in Cook county. The following objections .are urged against the validity of the proceedings:
“First—The ordinance is void, because (a) it provides for. the building of a sewer a large part of which is located outside the corporate limits of the village; and (b) because it fails to specify location of the man-holes provided by the ordinance to be built in connection with'the sewer; and (c) because neither the village nor any other body or authority has the power to build such a sewer in a public highway outside the limits of the village.
“Second—The assessment is void, (a) because it is based on benefits that will result, not from the improvement itself, but from improvements which may be constructed in the future' in connection with the proposed sewers; and (b) because the-sums assessed against a large part of the property are for: speculative benefits and not actual benefits; and (c) because distinction between general benefits and special benefits has not been observed in this proceeding.”
The village of Park Ridge is situated on the line of the Chicago and Northwestern railroad, about midway between the north branch of the Chicago river on the east and the Desplaines river on the west, about a mile and a half from each. The village is built on a ridge running in a northerly and southerly direction the entire length of the village. The first section of the ordinance providing for the improvement provided that' a sewer should be constructed from the east bank of the Desplaines river to the center line of Greenwood avenue, and from that point to Center street, and thence east ■to a point one hundred feet west of the westerly line of Park avenue. It does not appear from the ordinance that Desplaines river is outside of the incorporated limits of the village, but on the hearing, evidence was introduced showing that the western boundary of the village was about four thousand feet east of the river. It also appears that there is no outlet for the sewage of the village except the Chicago river on the east or the Desplaines river on the west, and the question presented is, whether the village had the power to go outside of its corporate limits and obtain an outlet.
Section 1, article 9, chapter 24, of the Revised Statutes, provides: “The corporate authorities of cities and villages , are hereby vested with power to make local improvements by ■ special assessment, * * * as they shall by ordinance prescribe.” It may be conceded that a municipal corporation' can not, as a general rule, exercise its powers beyond its own limits. If it has power to do so, that power must come from a statute which directly or indirectly confers the power. The section of the statute supra, which confers authority, on a vil-. lage to make local improvements by special assessments, was, no doubt intended to confine the improvement to the territory. ■ within the incorporated limits of the village, and under the. statute the corporate authorities of the village would have no power to make improvements in territory outside of its incorporated limits. But what is the object and true scope of the improvement under consideration ? Is it one within or outside of the incorporated limits of the village? The object was to furnish sewerage for the inhabitants of the village. The improvement was for the benefit of those residing within the incorporated limits of the village, and for them alone. But in order to make the sewer a success,—in order to make the improvement of any benefit to any person in the village,—it must have an outlet. No outlet could be found within the incorporated limits. It became, therefore, absolutely necessary to extend the sewer a short distance outside of the incorporated limits in order to allow an outlet. In order to carry out the true scope and object of the ordinance providing for the improvement, it became necessary to expend money outside of the incorporated limits of the village. But it does not follow because that is the case, that the assessment here is made for an improvement outside of the village. The construction of the sewer from the incorporated limits of the village to the Desplaines river is not an improvement in that territory, but is one for the village, rendered a necessity from the geographical condition of the land upon which the village is located. The power to construct a sewer within the incorporated limits of the village would be a useless one unless the sewer could be connected with an outlet, and should we hold that the statute prohibited a village or incorporated town from extending a sewer or drain beyond the incorporated limits when it was necessary to do so to obtain an outlet, such a construction would defeat the obvious intention of the legislature in passing the statute. In Shreve v. Town of Cicero, 129 Ill. 226, we had occasion to consider the same question, and we there held, that, where no suitable outlet for a sewer can be found in the town making the same, its extension into an adjoining town to a proper outlet could not be regarded as a violation of the stat-Lite. The same rule has been adopted in other States. See •City of Coldwater v. Tucker, 36 Mich. 474.
The next objection to the ordinance is, that it does not sufficiently specify the location of the man-holes. Upon this branch of the case the ordinance provides as follows: “Forty-eight man-holes are to be built upon said sewer, and located as follows: one at each crossing and abutting street, and the remainder at such intermediate points as the engineer in charge may select.” In City of Springfield v. Mathus, 124 Ill. 88, the ordinance involved provided: “Said sewer shall be two feet inside diameter, and shall be constructed of the best brick and cement, in the best workmanlike manner, with necessary man-holes and outlets for surface drainage of the street and adjacent property.” The ordinance was objected to upon the same ground as here, and it was held that the ordinance was sufficiently certain in giving the location of the manholes. The decision in that case is conclusive of the question raised here.
The next objection interposed is, that the village authorities failed to show that they had procured the right to construct a sewer in the highway outside of the village. The fact that the village authorities failed to show that they had obtained the right to occupy the highway before the ordinance was passed or before the assessment was made, did not, in •our judgment, invalidate the ordinance or the assessment. In Village of Hyde Park v. Borden, 94 Ill. 26, it was held that the •statute does not require that an ordinance for the construction of a sewer by a municipal corporation shall make any provision for acquiring the right to make the improvement upon the property of others, but it provides that after the . passage of an ordinance for an improvement the making of which will require that private property be taken, then the city or village shall file a petition for the ascertainment of the compensation to be paid, if it can not be agreed upon by the jparties. If, therefore, the highway in which the sewer was to be constructed is to be regarded as private property, the village authorities were not required, in advance of the passage-of the ordinance or making the assessment, to acquire the right, to occupy the street.
It is also said that the commissioners of highways have no-authority to grant the right to the village authorities to construct a sewer in the highway. We do not regard this position as well taken. The statute confers upon the commissioners of highways in the several'towns the care and superintendence-of all highways in their respective towns, and while there is no specific act authorizing them to empower a village or incorporated town to construct in the highway a sewer, the general power is broad enough to authorize them to grant consent-to any act which may be of benefit to the highway, such as the construction of a drain or sewer therein.
It is next insisted that the judgment confirming the assessment is erroneous, because the assessment is based on benefits that will result, not from the improvement itself, but from improvements which may be constructed in the future, and because the sums assessed against a large part of the property are for speculative benefits. The question raised under this ( branch of the argument is, whether the judgment is sustained by the evidence. Upon looking into the record it appears that a jury was waived and a hearing was had before the court. No motion was made for a new trial, nor was any exception preserved to the finding and judgment of the court. The decisions of this court are uniform, and the law may be regarded as well settted, that where a case is tried by the court without a jury, and no exception is taken to the finding of the court or to the rendering of judgment, and preserved in a bill of exceptions, the finding and judgment can not be assigned for error. Martin v. Foulke, 114 Ill. 206; Firemen’s Ins. Co. v. ; Peck, 126 id. 493.
The judgment of the county court will be affirmed.
Judgment affirmed.
