179 Ill. 310 | Ill. | 1899
delivered the opinion of the court:
The objections interposed by the appellant were well grounded and should have been sustained. The act upon which the proceeding is based directs the creation of a board of local improvements, and provides that all ordinances for local improvements to be paid for by special assessments or special taxation shall originate with the board; but section 4 of the act expressly provides that in cities, towns or villages having a population of less than 25,000 no ordinance for making" any local improvement shall be adopted unless the owners of a majority of the property in any one or more contiguous blocks abutting" on any street, alley, park or public place to be improved shall petition for such local improvement. The provisions of section 7, to the effect the board shall have the power, with or Without a petition, “to originate a scheme for any local improvement,” has no potency to authorize the boards in cities and villages having a population of less than 25,000 to act in the absence of a petition, but only in such cities to originate a scheme for an improvement which it has by petition been asked to recommend to the city council. It is not necessary the petition in such cases should attempt to specify in detail the nature, character, locality and description of the desired improvement. It is only essential the petition shall in general terms clearly indicate the improvement desired to be secured by the petitioners. (Patterson v. City of Macomb, ante, p. 163.) The “scheme” of the improvement and the description thereof are left to the board, and no more is required than that the nature, character, locality and description thereof shall be prescribed in the frame of the ordinance which section 8 of the act requires the board shall cause to be -prepared and submitted to the city council, and be likewise set out in the ordinance. The petition is, however, essential to the validity of an ordinance adopted by a city council of a city of the class to which the appellee city belongs. It is the petition which invests the board of local improvements with jurisdiction to act.
Prior to the preparation and presentation of the petition to the board of local improvements in this case the city council of the appellee city adopted profiles of the grades and levels of its streets, including Water street, and such profiles were kept among the files in the office of the city clerk as constituting the grades of such streets. The board of local improvements, acting upon the petition, after having called and held a public meeting in order to obtain the benefit of the views of the citizens as to the proper course to be taken with regard to the improvement, as required by section 7 of the act, recommended an ordinance should be adopted providing that the street should be improved by a pavement so laid as “to conform to the grade of said Water street as established by the city council of Waukegan and shown by the profiles on file in the office of the city clerk.” The city adopted the ordinance as recommended. It is manifest the petitioners in asking for the improvement, the board of local improvements in the consideration of the petition and preparation of the ordinance and in recommending the improvement be made by special assessments, and the city council in adopting the first of said ordinances, acted in view of the grade of the street as shown by the profiles thereof which the city council had adopted for the purpose of fixing the grade of the street and which were preserved as a part of the records of the city for the same purpose. That the appellant signed the petition on the theory the grades had been established as shown by the profiles is otherwise fully shown by the proof. He began the construction of a brick building upon the property objected for, in March previous to the presentation of the petition, and in order the building" should stand with reference to the street grade applied to the mayor for information as to the established grade, and was directed to the city clerk and also to the city engineer, and was advised as to the grade, and obtained a copy of the grade profiles referred to and constructed his building to conform to the grade as shown by such profiles. It was while engaged in the erection of this building he signed the petition, and he completed the building in August prior to the adoption by the city of- the resolution that a new grade should be adopted The grade at which a street is to be paved is clearly an element entering into and affecting the determination of a citizen as' to the desirability and advisability of aiding to secure the street to be improved in that way. That he consents to join in a petition asking a street shall be paved to a known grade or level has no tendency to indicate he would consent to become a petitioner for a pavement to be constructed at a higher or lower level. The elevation or depression of the grade of a street may operate advantageously or disadvantageously to abutting property, and the owner of such property would be moved to decide whether or not he would sign a petition for the paving of a street to be paid for by special assessments upon his property by the grade at which such pavement was to be laid,—that is to say, a petition for such an improvement is signed in view of the grade as. then established. When a petition so signed is accepted and acted upon by the board of local improvements and the city council with the same understanding of its meaning as that entertained by the petitioners, and is granted by the enactment of an ordinance directing the pavement to be laid in accordance with the grade as understood to exist by the petitioners and the city authorities, it has served its purpose, and the city cannot afterwards change the grade of the street and seize upon the petition as the legitimate basis of the recommendation of the board of local improvements for the enactment of another ordinance authorizing the street to be paved on a materially different grade. If in such case the city deems it wise to change the grade of the street and abandon the construction of the improvement contemplated by the petition, the board of local improvements and its ordinance, it should repeal the ordinance and leave it to those who are authorized by law to petition for a pavement at the level fixed by the new grade, to determine whether they desire the improvement to be made under the conditions as changed.
The ordinance first adopted recognized the grade as shown by the profiles previously adopted and then on file in the office of the city clerk and made such grade a part of the description of the improvement, and the ordinance last adopted recognized and adopted as a description of the improvement attempted to be made by it, the grade as changed by the subsequent resolution of the board. As to this improvement each of these ordinances fixed a grade by ordinance.
The question whether, if an ordinance adopted on the recommendation of a board of local improvements in a city having a population of less than 25,000 is found'to be defective in the mere matter of description of the nature, character, locality and description of the contemplated improvement, the board may recommend and the city may adopt any other ordinance correcting such defects without a new petition, is not involved in this case.
The judgment Will be reversed and the cause will not be remanded.
T , . , Judgment reversed.