City of Alton v. Foster ex rel. Alton Stoneware Pipe Co.

Mr. Justice Worthington delivered the opinion of the Court. The issues presented are questions of law. Section 49 of article 9 of the general act for the incorporation of cities and villages, Vol. 1 Starr & Curtis, p. 777, provides: “ All persons taking any contracts with a city or village, and who may agree to be paid from special assessments, shall have no claim or lien upon the city or village in any event, except from the collection of the special assessment ■ made for the work contracted for.” The ordinance authorizing the contract for building the sewer, provided in substance that the contract should contain a covenant that the contractor should have no lien upon the city,, and, except as to the amount (if any) to be collected by general taxation, should look to the special assessment only for his pay. The contract entered into by the city and appellee expressly provided that except for the city’s share of the cost, namely, that to be raised by general taxation, the appellee agrees to make no claim against the city in any event, and agrees to take all risks for the invalidity of the special assessment. Both parties were competent to make this agreement. They made it, and in the absence of any modifying stipulation, or of subsequent causes that destroyed its legal effect, it is binding upon them. City of Chicago v. People, etc., 48 Ill. 416. Counsel for appellee does not contest this general proposition, but claims that the ordinance having been declared void, and the improvement being completed, that the city has no power to order a re-assessment, and is therefore liable to appellee, payment to be made from the general taxation, and the trial court, in holding and refusing the propositions of law submitted, in substance so decided. In support of this proposition the following Illinois cases are cited by appellee. In City of Chicago v. The People, 56 Ill. 327, the contractor was to be paid when the special assessments were collected. But the city had assessed $4,965 against the property of the North Chicago Railway Co., which assessment, by reason of a previous contract with said company, not of public record, it had no power to make. On this account the court say: “ The condition is void and the promise single.” In Maher v. City of Chicago, 38 Ill. 266, the city undertook to make an improvement and pay for the same by special assessment, when it had no legal power to levy a special assessment for such purpose. In commenting upon this case in City of Chicago v. The People, 48 Ill. 416, the court say: “We gave judgment against the city, upon the ground that a special assessment could not be levied, and we held the city could not be permitted to procure work to be done on the faith of a special assessment, and then avoid payment by setting up that it had no power to levy it.” In these cases the city was held liable for the r.eason that it had no power in the first place to levy the special assessment. In the case at bar, the city of Alton had power to order the improvement and to provide for its payment by special assessment. The citations are not, then, pertinent to the issue in this case. Appellant, by its contract, agreed to make a re-assessment if for any reason the first assessment should be held invalid. If it refused or failed to do this, it would be liable for a breach of this covenant, But it is not claimed that appellant refused to do this. The stipulation shows that upon the petition of appellee, the council at once ordered an ordinance to be prepared for a re-assessment, but that before the next meeting of the council, at which time said ordinance would be reported, this suit was commenced. Appellee’s claim, then, is based upon the proposition that, the Supreme Court having held the description of the improvement to be insufficient, and the improvement having been in the meantime completed, the entire ordinance is void, and the city council has no power to levy a special assessment to pay for the improvement. In other words, that because of an insufficient description the ordinance is totally void, and the power of the city exhausted to levy an assessment to pay for an improvement that it had ordered to be made and paid for by special assessment; and that, having no power to levy an assessment, it can be compelled to pay for the improvement by general taxation. This is not the law as we view it. In this instance the insufficiency of description was in failing to state in the ordinance the depth of the initial point of the sewer, and in referring to the plans and specifications which gave the depth as being on file in the office of the “ city engineer,” instead of the “ city clerk.” It- has been repeatedly decided that when an improvement has been completed, without an ordinance ordering it to be made, that a city council has then no power to levy a special assessment for its payment. But we are aware of no case holding that, where an ordinance had been passed directing an improvement to be made and paid for by a special assessment, in case of an insufficient description of the improvement, thereby making the assessment invalid, a re-assessment could not be made, although the improvement had been completed between the times of passing the original ordinance and the ordinance for re-assessment. An ordinance may be invalid in one respect and valid in all others. Wilcox on Corporations, 160-161; Dillon on Municipal Corp., Vol. 1, 421; Freeport St. Ry. Co. v. City of Freeport, 151 Ill. 459; Wilbur v. City of Springfield, 123 Ill. 395; West Chicago Park Com’rs v. Farber, 171 Ill. 146. We think the proper discrimination between an ordinance entirely void, and one a part of which is invalid, is made in Levy v. City of Chicago, 113 Ill. 650, where, treating of an insufficient description, the court says : “ It is plain if - the ordinance * * * does not contain a description of the nature, character and locality of the improvement, the court will have no power to confirm the assessment.” And again, in City of Kankakee v. Potter, 119 Ill. 324: “ An estimate or contract for a local improvement, the nature, character and locality of which are not contained in the ordinance authorizing such improvement, is without authority of law, and is therefore invalid.” In other words, the assessment is invalid, but the ordinance directing the improvement to be made and paid for by special assessment is not thereby rendered totally void. Conceding that a reference to the office of “ city engineer,” instead of to the “ city clerk,” made invalid the description of the proposed sewer, it does not follow that those parts of the ordinance directing the improvement and that it should be paid for by special assessment, are thereby also made invalid and void. Section 46 of chapter 24, cities and villages, provides for such a contingency. It is as follows : “ If any assessment shall be annulled by the city council, board of trustees, or set aside by any court, a new assessment may be made and returned, and like notice given and proceedings had as herein required in relation to the first; and all parties in interest shall have the like rights, and the city council, or board of trustees and court, shall perform like duties and have like power in relation to subsequent assessments as are hereby given in relation to the first assessment.” In Freeport St. Ry. Co. v. City of Freeport, 151 Ill. 451, it is said: “ The power of municipal authorities is not exhausted by the first assessment, if it is annulled or set aside, or for any reason proves inadequate for the payment of the improvement made, but such authorities have the right and may be compelled to make additional levies necessary to pay contractors for work done and material furnished under an ordinance authorizing the same. Every contractor for a public improvement is presumed to know that the municipality has attempted to exercise its power in the mode required by the statute, to authorize the improvement, but he is not chargeable with knowledge of defects in the ordinance, or the manner of its passage, which may invalidate it, power being given by section 49, supra, to correct such defects by re-assessment. The passage of a valid ordinance must undoubtedly precede the levy of every special assessment, whether it be an original levy or a re-assessment, but in the latter case such ordinance need not precede the doing of the work, and to that effect is Ricketts v. Village of Hyde Park, 85 Ill. 110.” All that City of East St. Louis v. Albrecht, 150 Ill. 506, decides is that an improvement can not be made and paid for by special assessment before an ordinance is passed ordering the improvement. That this decision is limited to this condition, is seen by the following extract: “ It need only be observed, this case is wholly unlike those in which it has been held that where the improvement has been ordered by ordinance, and the assessment has been annulled by the city council or board of trustees, or set aside by any court, a new assessment may be made as provided in section 46, article 9, of the city and village act. In these cases the existence of an ordinance when the work was done is the basis of the re-assessment. Even when the original ordinance proves defective and insufficient to support an assessment, yet, if not absolutely void, it may be amended, or the defect cured by a supplemental ordinance, and a re-assessment made.” To the same effect are: West Chicago Park Com’rs v. Sweet, 167 Ill. 333; Farr v. West Chicago Park Com’rs, 167 Ill. 355. We think, then, that the trial court erred in holding that the city of Alton had no power to order a re-assessment for the improvement, and that, having that power, no recovery can be had for the balance due appellee, in a suit against the city, unless it refuses or neglects to levy such re-assessment. For the reasons stated, the judgment is reversed. The following statement of facts will be entered in the judgment: Appellant passed an ordinance for the construction of a sewer to be paid for by special assessment, and contracted with appellee to build the sewer, he to be paid from the special assessment, and to take all risk of the invalidity of the assessment. Appellant agreed that in case the original assessment was for any reason declared to be invalid, that it would cause a re-assessment to be made. Appellee completed the sewer according to contract, and part of the special assessment was collected and received by him. A part of the assessment, viz., $1,245,65, was contested successfully, on the ground of an insufficient description of the sewer in the ordinance. Appellee then petitioned appellant to make a re-assessment, which it immediately took the initial steps to do, but before an ordinance could be passed, appellee brought this suit, upon the ground that appellant had exhausted its power, and could not make a re-assessment as it had agreed to do, and that it was therefore liable for the balance to be paid by general taxation, or out of the general fund. The trial court so held. The finding of the trial court upon this holding is error, this court holding that a re-assessment can be made. The case is not remanded, for the reason that, if the holding of this court is correct, this action can not be maintained except upon the refusal or neglect of appellant to levy a re-assessment—which is not claimed.