Kuester v. City of Chicago

Mr. Justice Carter delivered the opinion of the court: This writ of error was sued out to reverse a judgment by default, confirming a special assessment levied to curb, fill and pave certain streets in the city of Chicago. The ordinance provided that the curb-stones should be firmly bedded on flat stones. The fiat stones were not otherwise described in the ordinance. We have held in numerous cases that such an ordinance is defective because of the insufficiency of the description of the stones upon which the curb-stones are to be bedded. See Lusk v. City of Chicago, 176 Ill. 207, Foss v. City of Chicago, 184 id. 436, and other cases. It is urged, however, that as there is no bill of exceptions in this case it will be presumed, in support of the judgment, that the court heard any and all admissible evidence explanatory of the term “flat stones,” and that it thus appeared to the court that that term had acquired a local and well known meaning among those engaged in making improvements of such a character; that the descriptive term employed was used in the ordinance in this local and well known sense, and that therefore the apparent defect on the face of the ordinance was cured. We have held in several cases that where it is proved that the descriptive term used in the ordinance has a well known and established meaning the apparent defect in description will be removed. (Shannon v. Village of Hinsdale, 180 Ill. 202; Levy v. City of Chicago, 113 id. 650; City of Danville v. McAdams, 153 id. 216; Village of Hinsdale v. Shannon, 182 id. 312; Latham v. Village of Wilmette, 168 id. 153.) Thus, in the Levy case we held that where it appeared that the word “filling” had a definite and well known meaning in Chicago in reference to street improvements, it would “be presumed that the framers of the ordinance, in the use of the word, intended that it should be expounded and received in the sense it was generally understood in that locality.” And it was there further said: “If, then, the ordinance had a well known meaning in Chicago, where the improvement was to be made, the ordinance cannot be regarded as indefinite or uncertain.” We have no doubt of the correctness of that decision. It appeared, however, in that case and in others, that under objections filed to the confirmation, evidence was heard explaining those words and terms, which, without such evidence and according to their commonly accepted meaning, left the ordinance defective for lack of certainty of description of the improvement. There is no such evidence in the record in the case at bar, but it is said we must presume, in the absence of a bill of exceptions, as this is a case at law, that such evidence was heard by the trial court, else that court would not have rendered the judgment. The rule at common law is well understood, but if that rule be applied to this statutory proceeding, still we are of the opinion that such a presumption can not be indulged upon this record. The judgment was by default, without any hearing of objections or upon any issue in the case. The assessment was confirmed upon default of the property owners, as provided by section 30 of article 9 of the act for the incorporation of cities and villages, and the presumptions arising from the recitals in the record are that the ordinance and proceedings were held sufficient by the court below on their face, and not that they were found sufficient after the hearing of extrinsic evidence. Without evidence it would be presumed that the words “flat stones” were used in their general and commonly accepted sense, and not according-to some local or technical meaning. The judgment is erroneous on its face, and the proceedings are insufficient to support the judgment. Such insufficiency may be taken advantage of on writ of error. Clark v. City of Chicago, 155 Ill. 223. The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views we have expressed. Reversed and remanded.