« AnteriorContinuar »
held any meeting on the Tuesday provided by the statute or not, although it does appear by the stipulation that the levy was not made until a few days later.
As said at the outset, however, the alleged failure to make the levy on the day fixed by the statute is not the ground specified in the objections filed, but only the failure to deliver the statement to the supervisor at that time; and the time of making the levy, as clearly appears by the objections and stipulation, is stated only as evidence of the failure to deliver the statement within the prescribed time. Hence, it is not necessary to determine in this case whether, in a case where it appeared that the commissioners held no meeting at the time fixed by the statute, but met at a later day and levied the tax, such tax would, on objections filed, be valid, or the error be cured by the 191st section of the Revenue act, or not. See, also, St. Louis Bridge Co. v. People, 128 Ill. 422; St. Louis Bridge and Tunnel Railroad Co. v. People, 127 id. 627.
The collector's application was prima facie sufficient to authorize judgment, and it was incumbent on objector not only to specify in writing the particular cause of objection, but to make it appear by the evidence,-at least sufficiently to overcome the prima facie case made by the collector. Tutchinson v. Self, 153 Ill. 512, and cases cited.
No error appearing in the record, the appellee is enti: tled to an affirmance. Judgment will therefore be entered in this court, pursuant to the statute, against the property of appellant described in the record for the said taxes levied in the town of Hopkins, and interest thereon, in the total amount of $132.41, with five per cent damages, and for said tax levied in the town of Mt. Pleasant, and interest thereon, in the total amount of $310.71, with five per cent damages, and for costs. The moneys de. posited with the collector, if any, or so much as may be necessary, shall be credited upon said judgment, and execution shall issue for the balance, damages and costs.
1. SPECIAL ASSESSMENTS-when ordinance for constructing sidewalk is uncertain. An ordinance for constructing a sidewalk is uncertain in description where it contains nothing from which it can be inferred whether the sidewalk is to adjoin the curb line or property line, or at what grade the walk is to be laid.
2. SAME-estimate of cost cannot be resorted to to aid defective ordinance. A statement in the report of commissoners appointed to estimate the cost of an improvement, which refers to the location of the improvement, will not aid a defective description of such improvement in the ordinance.
3. SAME-question of necessity for local improvement is for the council. The determination of the necessity for a local improvement is committed by law to the city council, and courts will not interfere with the exercise of its discretion unless the improvement ordinance is so unreasonable as to render it void.
APPEAL from the County Court of Cook county; the Hon. RICHARD YATES, Judge, presiding.
DAVID G. ROBERTSON, for appellant.
CHARLES S. THORNTON, Corporation Counsel, and JOHN A. MAY, for appellee.
Mr. JUSTICE WILKIN delivered the opinion of the court:
The city of Chicago filed its petition in the county court of Cook county for the levy and confirmation of a special assessment, under article 9 of the City and Village act, for the laying of a cement sidewalk on Rhodes avenue. A roll was duly made and returned. At the time set for hearing the appellant appeared and filed certain objections, all of which, save one, were overruled at the hearing. An objection to the effect that the assessment was greater than the benefits was sustained, and the assessment roll modified and confirmed.
One of the objections overruled was, that the ordinance authorizing the improvement did not specify the nature, character, locality and description of the proposed improvement, and this is assigned for error. Looking to the ordinance, we find that it provides for the construction of a cement sidewalk six feet in width on both sides of Rhodes avenue, "from 630 ........ to 67th
....., adjoining the...... line." In the title of the ordinance the blanks after the figures 63 and 67 are each filled with the word "street," but the blank before the word “line" is not aided by any reference in the ordinance. The estimate of cost states that the improvement is adjoining the “lot” line, but this cannot supply a defect in the ordinance itself, for the statute expressly provides that the location shall be specified in the ordinance. It may be that it could properly be said that the improve. ment was intended to extend from Sixty-third to Sixtyseventh street, and that this intention can be gathered from the ordinance; but what is meant by
......line” cannot be inferred from anything appearing in the ordinance, and therefore the location is still left in uncertainty. Whether it is to be next to the curb line or next to the property line cannot be known. Nor can it be ascertained from the ordinance at what grade the walk is to be laid. All of these facts are material in order that the committee appointed to estimate the cost may do so intelligently and with substantial accuracy. If the ordinance fails in this regard it is insufficient. (City of Carlinville v. McClure, 156 Ill. 492; Gage v. City of Chicago, 143 id. 157.) This objection should have been sustained.
Another objection is, that the improvement was unnecessary. It is claimed that the appellant had a plank sidewalk in front of his lots, which was up to grade and in good repair. The question of the necessity of a local improvement is committed by the law to the city council, and the courts have no right to interfere, except in a case where it clearly appears that such discretion has been abused. The ground on which the courts interfere is, that the ordinance is so unreasonable as to render it void. Under the proofs that was not the case here.
For the error in not sustaining the objection with reference to the uncertainty of the location of the improvement the judgment of the county court must be reversed.
THE WASHINGTON ICE COMPANY
FRANK E. BRADLEY, Admr.
Opinion filed February 14, 1898.
1. EVIDENCE-fact that eye-witnesses differ in their descriptions is not a discrediting circumstance. That eye-witnesses of an unexpected accident, horrifying in its nature, vary somewhat in their respective versions of the occurrence in testifying in a subsequent suit, is not a discrediting circumstance.
2. INSTRUCTIONS-instructions should be confined to the issues and to the evidence. An instruction is properly refused which presents an issue to the jury not raised by the pleadings and not necessarily following from the evidence.
3. TRIAL-admission of evidence in rebuttal rests with trial court. The admission of evidence in rebuttal is always a matter resting in the discretion of the trial judge, and such discretion is not reviewable in the absence of gross abuse.
Washington Ice Co. v. Bradley, 70 Ill. App. 313, affirmed.
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. ABNER SMITH, Judge, presiding.
This was an action brought by appellee, as administrator of the estate of Mary Moriarity, deceased, to recover damages resulting from the death of said deceased, caused, it was alleged, by injuries received from one of appellant's ice wagons, in the month of November, 1893.
On November 11, 1893, the servants of the ice company delivering ice in the neighborhood of Cottage Grove ave. nue and Thirty-second street, in the city of Chicago, left the team, headed north, in front of No. 3210 Cottage Grove avenue and carried ice into a saloon at that number, leaving the horses unhitched. There was a city ordinance then in force prohibiting the leaving of horses attached to wagons in any street of the city without securely "fastening" such horses. The ordinance did not undertake to define the meaning of the word used, or say what should constitute a secure fastening. One of its sections, however, provides that the owner of each building in front of which there should be a sidewalk, should provide, and securely fasten in the sidewalk, an iron ring of a specified diameter and thickness, or erect a suitable post for hitching, in every twenty-five feet of such sidewalk. There were no iron rings or posts in the sidewalk at or near the point where the team was left, or between it and the corner. On leaving the wagon, there being no rings or hitching-posts in sight, the driver and his helper hooked up the lines to two rings in the back of the wagon, so as to keep the horses from going ahead. When lines are hooked up in this way the horses can pull the wagon only by the reins. This was the customary way of hooking them up, and was the only means provided by the ice company for "securely fastening" the horses. During the few minutes while the men were delivering the ice at No. 3210 the horses started up and went north on Cottage Grove avenue, turning west at the corner of Thirty-second street, and the deceased was about to step onto the sidewalk at the corner, when, as is claimed by appellee but denied by appellant, she was struck by the team and injured. She died the same day. She was between forty-four and fortyfive years of age, and left a husband, but no children, surviving her.
On a trial before a jury a verdict was returned for $5000. The court entered judgment on the verdict, and