Wilbur v. City of Springfield

Mr. Justice Shope delivered the opinion of the Court: The city of Springfield, February 16,1885, adopted an ordinance providing for the paving and curbing of certain specified parts of streets and alleys in said city, particularly specifying the materials to be used and the manner of construction of such paving and curbing. Section 4 of the ordinance provided that all portions of said streets, and parts of said streets and alleys, included in the right of way of any steam, horse or street railway company, being the space between the rails of their tracks and one foot on the outside of such rails, should be paved in the same manner as other portions of said streets, but at the expense of said railway company, and to be paid at the same time as the payment of the special taxes by the ordinance ordered. The cost of paving the alley and street intersections and crossings, it was provided, should be included in the annual appropriation bills, and paid by general taxation. The remainder of the cost and expense of the improvements so ordered, it was provided, should be paid by special taxation, and for that purpose a special tax was, by the ordinance, ordered to be levied, assessed and collected upon the lots and parts of lots upon the streets and parts of streets ordered to be paved, in proportion to the frontage thereof on such streets or parts of streets, “equal in amount to the whole cost of paving that portion of said streets or parts of streets, and not included in the intersections and crossings aforesaid, nor in the right of way of any steam, horse or street railway company.” Such proceedings were had that the report of the commissioners appointed by said ordinance was confirmed by the county court, over the objection of plaintiffs in error, and the record is brought here by them -for review. Motions were made by plaintiffs in error, in the county court, to dismiss the proceedings for confirmation. It will not be necessary to consider such motion separately, for the reason that no question is raised thereby that does not arise upon the record. The first ground urged by counsel for plaintiffs in error for reversal of the judgment of the county court, is, that an ordinance providing for improvements by special taxation in the manner here provided, is in contravention of the constitution, and therefore void. Had the able and exhaustive argument of counsel not been before pressed upon the attention of this court, and met, as it must be again, by the fact that this court, in numerous cases, has settled the doctrine adversely to the contention of counsel, we should feel called upon to give it greater consideration than we can now do. This- question was fully considered and settled in the cases of City of Springfield v. Green, 120 Ill. 269; City of Sterling v. Galt, 117 id. 15; Galesburg v. Searles, 114 id. 217; Watson v. City of Chicago, 115 id. 78; Enos v. City of Springfield, 113 id. 65; White v. The People ex rel. 94 id. 604; Craw v. Tolono, 96 id. 255; Bigelow v. City of Chicago, 90 id. 53; Fagan v. City of Chicago, 84 id. 234. No further discussion of this contention, however inviting it may he, would he profitable, in view of these repeated decisions. It is further insisted by counsel, that the ordinance is void, because it embraces more than one improvement. While it is true that the ordinance, in this case, uses the word “improvements” in some of the sections, an inspection of the ordinance shows that it differs in no essential respect from that before this court in City of Springfield v. Green, before referred to. The character of the improvement to be made is, in all essential particulars, identical in both cases, and it was there said: “While many streets and parts of streets are embraced in the scheme of improvement adopted by the city, yet we regard them all as but parts of the same improvement. The city authorities, in adopting the ordinance, must have found, as a matter of fact, that these streets and parts of streets were so similarly situated, with respect to the improvement proposed to be made, as to justify treating them as parts of a common enterprise and single improvement, and from the record before us we think they were justified in doing so. They were all to be paved with the same material and in the same way, and the fact that there was a difference of a few feet in the width of some of them, and that the cost of paving the railway tracks in others was to be excluded from the estimate, should, in our opinion, make no difference in this respect. The similarity in the improvement proposed to be made, and the situation of the property to be assessed with respect to it, afford a more satisfactory test as to whether they might all be embraced in a common scheme as one improvement, than their actual connection or physical contact with one another.” The language employed is alike applicable to the case at bar. See, also, Murphy v. The People, 120 Ill. 234; Prout v. The People, 83 id. 155; The People v. Sherman, id. 167; Ricketts v. Hyde Park, 85 id. 110. It is, however, contended, in this case, that the improvement to be made under the ordinance was regarded by the city council as a separate improvement upon each of the streets and alleys named in the ordinance. This argument is founded upon the fact that the city council, in some sections of the ordinance, speak of the improvement to be made, as “improvements,” using the plural form of the word. This argument does not strike us with convincing force. The whole scope of the ordinance, as we have held, is to provide for a single scheme of improvement, and we are not prepared to hold that the use of the plural form of expression by the council in some sections, while in other sections they use the singular form of the word, can or ought to be regarded as controlling. The rules of construction require us to find from the language used, in connection with the object sought to be attained, the intent of the law maker, and, when this is found, to give it effect. We can not give this single circumstance so much weight and significance as to absolutely control us in our interpretation of this ordinance, and thereby take this case out of the rule announced in previous like cases. Such holding would, in our judgment, do violence to the ordinary and accepted rules of construction. The next contention in order, stated in the language of counsel, is, that the ordinance “does not make provision for assessing the special tax against corner lots, as contradistinguished from inside lots, but treats all property as fronting on the street, whether the side or end abuts on the street.” The precise question here raised was before us in City of Springfield v. Green, supra, and was there determined adversely to the contention of counsel; and although it appears that there is a difference in the language in the ordinances- in the two cases, in this, that in this ordinance the tax is to be levied, assessed and collected upon the lots, parts of lots and lands upon the streets or parts of streets to be improved, in proportion to the frontage upon such streets, etc., the tax in the Green ease was to be levied, etc., upon the real estate, lots and parts of lots and tracts of land abutting upon the line of said streets or parts of streets 'proposed to be paved, in proportion to the frontage upon said streets, etc. In the Green ease it was held that abutting lots, etc., were lots upon the line of the street; and in this case it must also be held that lots upon the street are none other than those upon the line of the street. This being so, the decision in that case is decisive of the question here. The purpose of all construction is to ascertain the intention of the law making power, that effect may be given thereto. It is apparent, from the ordinance, and from the record, that each of the lots and parts of lots against which the assessment was to be and was made, was bounded by the lines of the streets severally to be improved, upon which such lots or parts of lots fronted or abutted; and it is impossible that the language employed could have applied to any other lot, parts of lots or tracts of land. The only remaining contention against the validity of these proceedings which we should notice, is, that while the first section of the ordinance proposes the improvement of certain streets, parts of streets and alleys, the seventh section of the ordinance, and the one providing for the levy, assessment and collection of the special tax, omits the word “alley,” and seems to confine the assessment to lots upon streets, etc. There is, by this section, levied a special tax to pay for said improvement, (after deducting street and alley intersections and railway tracks, as before mentioned,) equal to the whole amount of the cost of paving that portion of the streets or parts of streets not included in said intersections and railway tracks; and said special tax, it is ordained, “is hereby ordered to be levied, assessed and collected upon and from each of said lots, parts of lots and tracts of land, in proportion to the frontage thereof upon the streets or parts of streets ordered to be paved, as aforesaid.” If, as contended by counsel, the alleys, as provided for in the first section, are not covered by the words, “said street or streets,” as used in this seventh section, which it is not necessary for ns here to determine, it follows that no levy whatever was made for paving the alleys. The only tax levied against lots or parts of lots is for the purpose of paving “that portion of said streets or parts of streets not included in the intersections,” etc. Without determining either of the questions seemingly raised by this position, it affirmatively appears that there was levied against the lots of plaintiffs in error, the expense, only, of paving the streets upon which they abutted, and by the line of which they were bounded. There is no special tax for the paving of an alley assessed or proposed to be assessed against their property, directly or indirectly, and they can not be heard to complain of that which does them no injuryp If it be conceded that this ordinance is void, as to the improvement, so far as it proposes the paving of alleys, so that no tax was properly levied against lots abutting on such alleys, it does not follow that it is therefore void as to the levying of said tax for the improvement of the streets designated, for it is a well settled principle, applicable to by-laws and ordinances, that if the provision relating to one subject matter be void, and as to another it be valid, and the two are not necessarily or inseparably connected, it may be enforced as to the valid portion as if the void portion had been omitted. For the reasons stated, the judgment of the county court of Sangamon county will be affirmed. Judgment affirmed. ,