Clarke v. City of Chicago

Mr. Justice Magruder delivered the opinion of the court: The objections, filed by the appellants upon the trial below to the confirmation of the assessment, attacked the validity of the ordinance lying at the basis of the assessment, because of an alleged failure to comply with certain preliminary requirements of the statute. It is contended on the part of the appellants that, before the passage of the ordinance under which the present assessment was levied, no estimate by the city engineer for the improvement was incorporated into the records of the board of local improvements, and no public hearing was held, at which the people could discuss the cost of this improvement; and ten days had not elapsed between the time of the passage of the authorizing resolution and the submission of the ordinance to the city council. Section 7 of the act of June 14,1897, “concerning local improvements,” provides that the board of local improvements shall have the power to originate a scheme for any local improvement to be paid for by special assessment or special tax, either with or without a petition, and that, in either case, the board shall adopt a resolution describing the proposed improvement, which resolution shall be at once transcribed into the records of the board. The resolution so adopted shall fix a day and hour for the public consideration thereof; which shall not be less than ten days after the adoption of the resolution. The board shall also cause an estimate of the cost of the improvement to be made in writing by the public engineer to be itemized to the satisfaction of the board, and this estimate is required to be made a part of the record of said resolution. Notice is required to be given by posting, or by posting and mailing, of the time and place of the hearing, and this notice is required to contain the substance of the resolution adopted, and the estimate of the cost of the improvement. Section 8 provides, that, at the time and place fixed in the notice for the public hearing, the board shall meet and hear the representation of any person desiring to be heard on the subject of the necessity of the proposed improvement, the nature thereof, or cost as estimated; and after such hearing, the board shall adopt a new resolution abandoning or modifying or adhering to the proposed scheme, as they shall consider most desirable. It thus appears, that, in its original resolution describing the proposed improvement, the board must fix a day and hour for public consideration of said resolution, and shall also make the estimate of the cost of the improvement,. as made by the public engineer, a part of the record of the resolution. Inasmuch as the day and hour fixed for the public consideration of the resolution must be not less than ten days after the adoption of the resolution, and inasmuch as the board must cause an ordinance for the improvement to be prepared after such hearing, it follows that ten days must elapse between the time of the adoption of the resolution, authorising the improvement, and the submission of the ordinance to the council. This must be so, because it is after the hearing, when the board adopts the new resolution adhering to the improvement, “and thereupon, if the said proposed improvement be not abandoned, said board shall cause an ordinance to be prepared therefor to be submitted to the council.” These preliminary requirements as to the contents of the resolution of the board of local improvements, and as to the lapse of the time between the adoption of the resolution and the submission of the ordinance, are mandatory and jurisdictional in their character. Statutes, delegating the power to levy taxes or assessments, must be construed strictly. This power can not be rightfully exercised by corporate bodies, unless it is authorized either,in express terms or by necessary and clear implication. Authority for its exercise must be found in statutory grant or requirement. Where the statute provides a particular mode for its exiercise, that mode must be pursued, and no other can be substituted for it by the officials who undertake to exercise it. (Webster v. People, 98 Ill. 343). The proceeding under the act of June 14, 1897, is a statutory proceeding, and every step provided by the proceeding prior to the passage of the ordinance must be strictly complied with, subject to such qualification, as may be contained in section 9 of the act. (McChesney v. People, 148 Ill. 221; City of Alton v. Middleton’s Heirs, 158 id. 442). A resolution was adopted by the board of local improvements on December 27, 1898, providing for the improvement of Clybourn avenue between Division street and North avenue at a cost of $25,500.00. A public hearing was held on January 18, 1899, and an improvement, estimated at a cost of $25,500.00, was considered. Thereupon, an ordinance was prepared and submitted to the common council, providing for an improvement to cost $25,500.00, and in reference to which a hearing had been had on January 18, 1899. A petition was then filed in the county court on April 8, 1899, to pay for the improvement estimated at a cost of $25,500.00; but this proceeding, after the entry of certain preliminary orders therein, was dismissed on September 12, 1899. The hearing had on January 18,1899, which was with reference to the improvement estimated at a cost of $25,500.00, was the only hearing which was had or of which any notice was given.- The resolution of December 27, 1898, fixed upon January 18, 1899, as the time for the public consideration of the improvement estimated at a cost of $25,500.00. Ten days elapsed after the hearing of January 18, 1899, before the ordinance of March 6, 1899, providing for the improvement at a cost of $25,500.00, was submitted to the common council. Ten days, however, did not elapse between the adoption of the resolution describing the present improvement and the submission of the ordinance therefor to the common council. The resolution providing for the present improvement, estimated at a cost of $29,500.00, is the resolution which was adopted by the board of local improvements on May 17, 1899. That resolution, as will be seen by a reference to its terms, did not fix any day or hour for the public consideration thereof; nor did it contain any estimate of the cost of the improvement, made in writing by the public engineer over his signature. On the contrary, it merely resolved that the petition then pending in the county court, and which was filed April 8, 1899, providing for this same improvement, should be dismissed, and it directed that the city engineer and the engineer of the board should prepare a new estimate for the improvement, and that a new ordinance should be prepared and sent to the city council, providing for the improvement in accordance with the new estimate and pursuant to the original resolution theretofore adopted. The new estimate, provided for in the resolution of May 17, 1899, was made five days thereafter, to-wit: on May 22, 1899, but was not made a part of the record of any resolution. There was no resolution, in which the estimate of the cost at $29,500.00 was embodied. The new ordinance, which the resolution of May 17, 1899, directed to be prepared and submitted to the council, was prepared and submitted and passed on May 22, 1899, five days after the adoption of the resolution of May 17, 1899, and not ten days after the adoption thereof. The property owners were not allowed to be heard upon the subject of the estimate of the cost of the improvement at $29,500.00. Section 8 provides that the public hearing-shall be had, not only as to the necessity of the proposed improvement and the nature thereof, but also as to the “cosí as estimated.” Manifestly, the estimate of the cost must be made before the hearing, and the property owners must be allowed to be heard upon the subject of that estimate. Here, an estimate of $29,500.00 was made, and the property owners were given no opportunity to be heard in reference to it. The resolution of May 17, 1899, should have fixed a day and hour for the consideration of that resolution, which should not have been less than ten days after its adoption, and that resolution also should have made the estimate of $29,500.00 a part of itself. Nothing of the sort was done. In reference to these requirements section 7 uses the word “shall,” and is mandatory in character. The board was not vested with any discretionary power on the subject. The requirement, that the estimate should be made a part of the preliminary resolution was a necessary antecedent to the passage of the ordinance. The omission of the public hearing", the omission of the naming of the time for the public hearing from the resolution, the omission of any reference to an estimate of the cost of the improvement from the resolution, and the submission of the ordinance of May 22,1899, to the city council, before ten days had elapsed between adoption of the authorizing resolution and such submission of the ordinance, cannot be regarded otherwise than as such substantial variances as render the ordinance, upon which this proceeding is based, void. (Ives v. City of Omaha, 51 Neb. 136; Landis v. Vineland, 60 N. J. L. 264; Gilmore v. Hentig, 33 Kan. 156; Hentig v. Gilmore, id. 234). Section 9 of the act provides that the “recommendation by said board shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and if a variance be shown on the proceedings in the court, it shall not affect the validity of the proceeding unless the court shall deem the same willful or substantial.” An act, which is willful, is an act which is designed and intentional. The resolution of May 17, 1899, shows, upon its face and by its terms, that the city engineer had made no new estimate in addition to the old estimate of $25,500.00, and, therefore, the omission of the new estimate from that resolution could not have been an accident. But whether the omission of the estimate from that resolution was willful or not, its omission certainly constitutes a substantial variance, because a substantial variance is a real and material variance in distinction from a merely technical variance, and the mandate of section 7 is positive that the estimate “shall” be made a part of such resolution. The notice, which is required to be given in advance of the hearing upon the necessity of the cost of the proposed improvement, is required to contain the substance of the resolution adopted by the board, and an estimate of the cost. Hence, the requirement that the estimate shall be made a part of the resolution is for the purpose of enabling the people at the public hearing to discuss intelligently the nature, necessity, and cost of the improvement. The legislature, in this act, intended that the property owner and taxpayer should have every opportunity to know or learn what improvement his property was to be assessed for, and what such improvement was to cost. Here, he was given notice to attend a hearing upon the subject of an improvement that was to cost $25,500.00, but he was never given an opportunity to attend any hearing upon the subject of an improvement that was to cost $29,500.00. After the public hearing on January 18,1899, the property owners rested under the belief, that the street was to be paved at a cost of $25,500.00, but subsequently the board of local improvements raised the cost $4000.00, without giving them a chance to be heard as to an improvement to be made at such a cost. In cities like Chicago, whose population exceeds 25,000, the act in question does not provide for a petition by the majority of the property owners before the improvement can be made. That safeguard to the rights of the property owners is confined to towns, cities, and villages having a population less than 25,000. In cities, whose population is greater than 25,000, the board has power to originate a scheme for local improvements without a petition. In addition to this, the act clothes the board of local improvements with unwonted power, because, under section 5 of the act, the city council is prohibited not only from passing, but even from considering, any ordinance for a local improvement, unless the same is first recommended by the board of local improvements. The members of that board are appointed by the mayor and not elected by the people, as are the members of the city council. In view of these extraordinary powers conferred upon the board of local improvements, the requirements as to the preliminary steps to be taken before the passage of an ordinance for the improvement, should be strictly enforced. Here, the prima facie case, made by the recommendation of the board, is overcome by proof showing" a substantial variance from the preliminary requirements of the law. When the proof showed that no public hearing had been held on this improvement, and that the estimate of the city engineer was no part of the authorizing resolution, the void character of the ordinance was established. (Merritt v. City of Kewanee, 175 Ill. 537). Unless a valid ordinance is shown, there is nothing on which a subsequent assessment proceeding can rest. A valid ordinance is the foundation of any improvement by special assessment, and cannot be dispensed with. (City of East St. Louis v. Albrecht, 150 Ill. 506). It is claimed, however, on the part of the appellee, that the objections here under consideration were cured by the motion made by the counsel of the city, upon the trial below, to reduce the assessment roll pro rata $4000.00. It is true that such a motion was made and objected to, and the objection was overruled, and the overruling of the same was excepted to. But there is nothing in the record to show, that the assessment roll was actually reduced by the sum of $4000.00, and the final judgment of confirmation, which was entered on October 12, 1899, confirms the assessment roll made out upon the basis of a cost of $29,500.00, and not as reduced in accordance with the motion. But such a reduction, if made by the court upon the motion of the city at the time and under the circumstances under which this motion was made, would not cure the difficulty. The objections, which have here been considered, were jurisdictional in character, because, the ordinance being invalid for want of a preliminary hearing upon the question of the estimate made by the engineer, the court had no jurisdiction to entertain a proceeding based upon such an invalid ordinance. For the reasons above stated, we are of the opinion that the court erred in not sustaining the objections made by the appellants to the confirmation of the assessment. Accordingly, the judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.