185 N.E. 230 | Ill. | 1933
This is an appeal from an order and judgment of the county court of Cook county entered on hearing on a final certificate of cost and completion of a local improvement in the village of Elmwood Park, filed by the board of local improvements under section 84 of the Improvement act. The improvement consisted of sidewalk, pavement and curb and gutter on certain streets of the village. The estimated cost of the improvement as confirmed by the county court was $776,000. Appellant company was the contractor. It furnished all materials and did the work called for by the ordinance. After completion of the improvement, and prior to filing the final certificate of cost and completion by the board, the engineer for the village made a final estimate showing the cost of the improvement to be $623,940.47. Appellee Mills Sons, owner of property affected by the improvement, objected to the engineer's estimate, and on conference with the board, the contractor and the engineer this estimate was reduced to $608,049.92 and a second estimate of the engineer showing that amount was made up. The engineer having died, another engineer took up the work in his place, and by reason of further objections on the part of Mills Sons another estimate was made by the new engineer showing the cost to be $593,252.03. This was the estimate adopted by the board of local improvements and became the estimate in its final certificate. This certificate included also the usual items of cost of engineering and inspection, of levy and collection and deficiency in interest, which, added to the engineer's estimate of the cost, brought the total cost of the improvement up to $713,688.15, leaving a balance of the assessment as confirmed to be abated to the property owners, amounting to $35,923. Objections to the final certificate of cost and completion were filed by Mills Sons and heard by the county court. It objected to twenty-six items, totaling $100,477.12. It also objected that certain catch-basins were constructed in *152 places other than required by the ordinance. This objection was not sustained, and as no cross-errors are assigned here and no question raised here as to the substantial conformity of the improvement with the ordinance, no further notice need be taken of the objection concerning the catch-basins.
The appellant contractor filed a cross-petition seeking the inclusion of three items of cost omitted from the final certificate of the board, totaling $25,588.74. This cross-petition also objected to the items of the certificate relating to cost of levy and collection and deficiency in interest. As the court approved these last named items of the certificate and no assignment of error here questions the judgment of the court in that matter, no further attention need be paid to those items. All questions on the merits here relate to the items of cost of labor and materials furnished. Other assignments of error on procedural matters appear here and will be later referred to.
On the hearing the court disallowed twelve items of the cost of the improvement as shown in the final certificate of the board, aggregating the sum of $54,788.38, and, adding that amount to the amount to be abated, directed that the sum of $90,711.38 be abated. This change in the amount abated is, of course, merely a matter of computation, since the cause of the change arises from the disallowance of the twelve items of cost. The court refused to allow the items sought by appellant to be included by its cross-petition. Appellant argues in support of its assignments, both as to the disallowance of the twelve items and the refusal of the court to allow the items enumerated in its cross-petition, that such items were legal extras, made necessary by the duty of the contractor to do a good and workman-like job, and that the court failed to consider the bidding sheet which was prepared by the board and on which appellant made its bid. This involved, however, only the question of the cost of the improvement. *153
The first question arising here is whether the finding of facts and judgment of the court as to the disallowance of certain items of cost are conclusive under the provisions of section 84 of the Local Improvement act. The appellee property owner does not raise the question, and the village argues that the court may review the finding and judgment of the county court in this particular. After submission of this cause, appellant, on leave granted, filed a helpful digest of the decisions of this court covering the conclusiveness of the county court's order under section 84 of the act. That section has been frequently quoted in opinions of this court and need not be again set out here. It provides for a hearing on the certificate of cost and completion filed by the board of local improvements. The certificate shall show the final completion and acceptance of the work, the cost thereof, including the cost of engineering services, together with amounts estimated by the board required to pay accruing interest on bonds or vouchers issued, and the amount, if any, of the assessment to be abated. After notice, a hearing shall be had on the petition and such objections as are filed thereto and the court shall enter an order according to the fact, which order shall be conclusive upon all parties, and no appeal therefrom or writ of error thereto shall be allowed to review or reverse the same. In City of East Peoria v. Sheen,
As has been observed, the entire change in the certificate arose out of disallowance of items of cost of the improvement. The court found that the improvement as completed in all respects conformed to the ordinance providing therefor, but that twelve items of cost were not properly a part of the cost of the improvement and that the same should be disallowed. The court thereupon so amended the certificate and as amended approved it and directed the commissioner to re-cast the assessment roll showing the necessary abatement. While the questions thus passed upon necessarily involve a construction of the ordinance, as does the question of conformity of the improvement to the ordinance, they are questions of fact concerning the items of cost of the improvement and are within the limitations of conclusiveness fixed by section 84 as construed by this court. If the county court's finding as to these items of cost be not conclusive then such provision of section 84 is meaningless. The issue on this branch of the case relates to a matter in which the statute makes the order of the county court conclusive.
Counsel for the village, in support of their position that this court may review this finding of the county court, citeCity of Belvidere v. Iles,
In Village of Niles Center v. Schmitz,
In City of North Chicago v. McHugh,
The assignments of error here are that the court erred in sustaining objections to certain items in the certificate of cost and completion, and that it erred in refusing to enlarge the certificate of cost and completion according to the appellant's cross-petition. These assignments of error do not present a question for review.
Counsel for the appellant argue that the county court did not properly consider the bidding sheet in determining *156 whether the items of cost objected to and those included in his cross-petition were proper. The bidding sheet was in evidence, and its effect on the court's consideration, or whether it had any effect, is not before us. We are of the opinion that the finding of the county court is conclusive as to this branch of the case, and there is nothing thereon to be reviewed by this court.
It is also argued by appellant that Mills Sons is estopped to object to the certificate of cost and completion. This assignment questions the right of a property owner to object to the certificate of the board, and the action of the county court in that regard is reviewable here. (Wilmette State Bank
v. City of DesPlaines,
It is also urged that the court erred in refusing to view the premises. Counsel concede that such view lay within the discretion of the court but say that under the circumstances of this case it was an abuse of discretion to refuse so to do. The evidence was extended and the court might properly have viewed the premises as an aid to an understanding of the evidence had it chosen to do so. Most of the items objected to, however, were hidden in the work, and it is not clear what special benefit the court would have derived from such view. We are unable to say that the refusal of the court to view the premises constituted an abuse of discretion. We are of the opinion, therefore, that so far as the judgment of the court is reviewable here it is correct.
The judgment will be affirmed.
Judgment affirmed.
DUNN and DEYOUNG, JJ., dissenting.