Warren v. City of Chicago

Mr. Justice Mulkey delivered the opinion of the Court: This is an appeal, by Parker H. Warren, from a judgment • of the county court of Cook county, confirming a special assessment levied by the city of Chicago upon thirty-two lots belonging to appellant, and fronting on South LaSalle street, in said city, for the purpose of constructing “water service pipes” to be laid from said lots, and connected with the main water pipe in said South LaSalle street. The appellant is a non-resident, and the property in question is vacant, and not in use for any purpose. One-half of the lots in question front •on the east, and the other on the west side of LaSalle street, .are forty-five feet wide, one hundred and twenty feet deep, «-and having an alley in the rear for an outlet. For the purposes of the assessment each of these lots is divided east and west, the. north portion being designated as the north half, and the south portion as the south half. As thus divided, each half lot, by the proposed scheme, is to be provided with and is assessed for one service pipe. Each service pipe 'on the west side of the street is estimated at $21.75, and on the east side at $28.35, making them cost, on an average, $25.05 apiece. A.t this rate, the assessment amounts to $50.10 for a whole lot, or $1603.20 for the thirty-two lots. It further appears that lots belonging to others, having a frontage of twenty-five instead of forty-five feet, are, under the scheme adopted, to be provided with but one service pipe for each lot, the cost thereof being the same as above stated,—-that is to-say, $21.75 for lots on the west side of the street, and $28.35 for lots on the east side. It is objected that an ordinance which thus discriminates between the owners of property, for the purposes of an assessment, is unreasonable, oppressive and unjust, and for that reason .is void. It is also claimed, that because the property in question is vacant, there is no use, public or private, for the improvement for which the property is assessed, and that the assessment is invalid on that ground. AVith respect to-this last objection but little need be said. That incorporated towns and cities have the power to establish and maintain water works within their corporate limits, and thus provide for the convenience, health and public welfare of such municipalities, can not be questioned. It is also equally well settled that they have a large and wholesome discretion in such matters, with the exercise of which courts have no right to interfere, except where such discretion is clearly about to be abused. In the absence of any statutory provisions relating to the subject, it is for the corporate authorities to say in what streets the main and lateral service pipes shall be laid down, so as to* bring the water within the reach of consumers. Their chief, if not only, guide, in the exercise of their discretion with respect to these matters, is the wants, true welfare and necessities of the people. Everything considered, we are not prepared to say there has been such an abuse of the city’s discretion in this respect, as to justify the court in interposing on the ground last suggested. The other objection is of a more serious character. That the plan or scheme of assessment adopted discriminates unjustly against appellant, is too plain to admit of serious doubt. The fact that his lots happen to be twenty feet wider than the lots of some of the others, affords no reason why he should be arbitrarily compelled to pay for an extra service pipe, for which neither he nor the public has any present or prospective use. Had an estimate been made of the entire frontage of appellant’s lots, and he had then been required to pay the same as others in proportion to such frontage, the plan would have had at least the appearance of justice; but as it is, it has not. Computing his assessment on this basis, his entire assessment would have been $1442.88, whereas his assessment, as made, unless we have inadvertently committed some error in the calculation, exceeds this sum $160.32. Conceding the power to make the assessment, we are clearly of opinion that the scheme adopted, so far as appellant’s property is concerned, was unauthorized and void. Under the circumstances, the property should not have been assessed for more than one service pipe to each whole lot. This would reduce the assessment to $801.60,—just one-half of what is now demanded. The only shadow of justification which is shown for this discrimination against appellant, is the arbitrary subdivision made of his lots for the purposes of the assessment, which was done without any authority, either in law or fact. There is no pretence it was done with the sanction of appellant, or that the property was ever theretofore known or designated as it is described in the assessment proceeding. Had two tenements been erected on each lot, thereby showing an intention on the part of the owner to divide the lots for residence or business purposes, quite a different ques: tion would be presented. No such question, however, is raised by this record, and it would therefore be useless to discuss it. The judgment of the county court will therefore be reversed, and the cause remanded for further proceedings in conformity with the views here expressed. Judgment reversed. Scott and Sheldon, J7., dissenting. Subsequently, on March 15, 1887, on an application for a-rehearing, the following additional opinion was filed: Per Curiam : The conclusion reached upon the former consideration of this case was rested upon two distinct grounds, one of which, as it now appears, was founded, in part, upon a misapprehension of facts. While this does not at all affect, the judgment itself, it has made it necessary to modify the-opinion so as to make it conform to the facts as we now understand them. This has been done. Adhering, as we do, to-the conclusion heretofore announced, the petition for a rehearing must be overruled. Petition denied.