Lake Shore & Michigan Southern Railroad v. City of Chicago , 56 Ill. 454 ( 1870 )

Mr. Justice McAllister

delivered the opinion of the Court:

This was an application for judgment, upon a special assessment levied for curbing with curb walls and filling Clark street, from the south line of Twelfth street to the north line of Eighteenth street, and from the south line of Eighteenth street to the north line of Twenty-second street.

It appears from the evidence, without controversy, that before the passage of the ordinance ordering this improvement, a considerable portion of it, such as building curb walls and filling, had been done by private individuals and a railroad corporation, of their own motion. In the report of the Board of Public Works recommending the improvement, the ordinance of the council, the oath of the commissioners, and the several notices given, the proposed work is described as above, with this addition: “Excepting such portions of the above described work which have been already done in a suitable manner.” And there was no attempt, in any stage of the proceedings, by the council or the commissioners, to define, by any public act, what portion of the work had been done in a suitable manner.

We have held in several cases at this term that such an ordinance is void, because the responsibility of directing the mode, manner and extent of such improvements, is with the common council, and because it is an attempt to vest the board with an irresponsible, discretionary power which may afford a cover to an unfair estimate or assessment, and open the door to fraud and favoritism in letting the contracts for the work. Foss v. The City of Chicago, ante. p. 354.

The objectors offered to prove that the assessment in this case was made as if no part of the work had been previously done. The court excluded the evidence, and exception was taken. It was unnecessary to give any such evidence, because the ordinance was void without it. But it was admissible, as showing the fraud and injustice of the assessment. Various other offers of evidence were made, tending to show that the Board of Public Works, at some time, made arrangements with some of the parties who had voluntarily done this work, and who were, by no provisions of law or of any ordinance, entitled to be allowed any thing for it, by which they were to be assessed a certain sum and then to receive vouchers from the board for the work done, by which the assessment against their property was to be set-off or paid. The court excluded the evidence, and exception was taken. If an improper arrangement had been entered into before or at the time of making the assessment, and was carried into effect, it would most clearly render the assessment upon the property of others, not parties to the arrangement, fraudulent and void, even if the ordinance had been free of objection. Because, if any such set-off could be made, and we are not prepared to say that it could not, the common council, and not the Board of Public Works, was the proper authority to do so.

If the exercise of this great power over the rights of private property can be upheld at all, it can only be done by showing a close, straight-forward, honest compliance with every substantial requirement of the law prescribed for its government.

The judgment of the court below must be reversed and the cause remanded.

Judgment reversed.^*

* Timothy Wright v. The City or Chicago and The Chicago & Rock Island R. R. Co. v. The Same; appeals from the Superior Court of Chicago: In each of these cases Mr. Justice McAllister delivered the opinion of the court as follows: This case is like that of the Lake Shore & Michigan Southern R. R. Co. v. The City of Chicago, and must be decided in the same way. The judgment of the court below is reversed and the cause remanded.