appellate court is reversed, and the cause is remanded to that court, with directions to affirm the judgment of the county court. Reversed and remanded, with directions.

(185 Ill. 242)

MCFARLANE et al. v. CITY OF CHICAGO. (Supreme Court of Illinois. April 17. 1900.)

RAILROADS-VIADUCTS-PAVING-ASSESSMENT -ABUTTING OWNER'S LIABILITY.

1. Where an ordinance authorizing a railroad company to construct a viaduct, provided that it should "maintain and keep in repair the approaches thereto," it was bound to maintain and keep in repair the paving and roadway on the viaduct.

2. In an assessment for street paving, it appeared that appellant's property abutted on the street at a point where it formed the approach to a viaduct built by a railroad under an ordinance requiring it to maintain and keep in repair the approaches; the roadway being held in place some 12 feet above the natural ground surface of defendant's property by retaining walls. Held, that defendant's property was not subject to assessment for paving the street.

3. An ordinance requiring the assessment of appellant's abutting property for paving a street with brick, which is already paved with cedar blocks in very good condition, will be declared void as to defendant, where it does not appear that a brick pavement is required in the locality, and another piece of block pavement within the limits of the improvement is omitted from the ordinance without apparent reason therefor.

Appeal from Cook county court; O. H. Gilmore, Judge.

Proceedings by the city of Chicago to confirm a special assessment for a street improvement. From a judgment confirming the assessment, Hugh McFarlane and another appeal. Reversed.

This is an appeal from a judgment of confirmation of a special assessment entered by the county court of Cook county in favor of the city of Chicago and against lots 1, 2, 3, 4, 5, 10, and 11, and the E. 1⁄2 of lot 12, in the subdivision of block 55, except the S. E. 14, in School-Section addition to Chicago, the property of Hugh McFarlane, and lot 4, except street, and that part of lot 3 lying west of Canal street, in block 35, in Canal Trustees' subdivision of the W. 1⁄2 and so much of the S. E. 14 as lies west of the South Branch of the Chicago river, in section 21, township 39 N., range 14, the property of William O. Tegtmeyer, for the curbing, grading, and paving with bitrified brick, and plastering curb walls, of certain parts of South Canal street, from the south line of the street-railway right of way of West Harrison street south to a line parallel with, and 180 feet southeasterly of, the southeasterly line of Lumber street, in the city of Chicago. The ordinance for the improvement was passed by the city council of the city of Chicago on the 22d day of May, 1899. The petition was filed for the special assessment in the county court of Cook county on the 17th day of June, 1899, and a hearing had by the court on the 26th and 27th

days of September, 1899. The ordinance for the said improvement, between the points above referred to, excepted certain portions of the street, viz. the east half of the roadway of South Canal street from the south line of the street-railway right of way on West Harrison street to the north curb line of Polk street, and the east half of the roadway of South Canal street from the north line of West Twelfth place to the south line of West Thirteenth street, and the roadway of South Canal street from a line parallel with, and 60 feet south of, the south line of West Fifteenth street to the north line of West Sixteenth street. The property of appellant Hugh McFarlane is located at the southwest corner of Harrison and Canal streets, part of it (viz. lots 1, 2, 3, 4, and 5) fronting east on Canal street on the line of the proposed improvement, and was assessed $729.75. Running east on Harrison street across Canal street is a viaduct, which crosses the tracks of the Chicago, Burlington & Quincy Railroad, and connects with the bridge over the river to the down-town portion of the city of Chicago. There is an approach to this viaduct on Canal street to Harrison street, immediately in front of McFarlane's property. This approach forms a part of the street, and in front of his property the grade of the street is 12 feet above the surface of the surrounding ground. This approach on Canal street extends south gradually from the viaduct at West Harrison street for a distance of 300 feet, when the natural surface of the street is again reached. The pavement proposed by the ordinance, when it comes to this point on Canal street, is to be laid on the approach to the Harrison Street Viaduct. Where Canal street intersects Polk street there is another viaduct extending easterly on Polk street, across the tracks of the Chicago, Burlington & Quincy Railroad, easterly to a bridge over the Chicago river, which also connects with the down-town district. this viaduct there is also an approach on Canal street, both north and south of Polk s..eet, running up to Polk street to meet the grade of the viaduct, which is of a similar nature to the approach above referred to, at Harrison street. These approaches, both north and south of Polk street, are each about 300 feet long, and at the grade of the viaduct have an elevation of about 12 feet, then slope gradually to the north and south on Canal street this distance of about 300 feet, where the ground grade of the street is again reached. The proposed improvement provides for the paving of these approaches on Canal street, as well as the approach on the corner of Harrison and Canal streets. These approaches are filled in with dirt, and are held in place by retaining walls built on each side of the roadway, made of large blocks of rubble limestone, which hold the entire weight of the fill between them, upon which fill the present roadway now exists. This roadway is to be graded, and then paved with brick. Both of

To

these viaducts and their approaches were built in the year 1881. The viaduct and approaches over Polk street were built under an ordinance granted by the city of Chicago to the Chicago, Burlington & Quincy Railroad Company, which was passed by the city council on the 20th of December, 1880, which authorized the railway company to construct the viaduct and approaches under certain conditions, and provided in section 3 as follows: "Sec. 3. The permission and authority hereby granted are upon the express conditions that the said railroad company shall pay, or cause to be paid, to the city of Chicago the cost and expense of constructing and erecting a new viaduct on Polk street over the railroad tracks crossing said street, between Canal street and the Polk Street Bridge, together with all proper lateral and other approaches necessa. ry thereto, the money necessary therefor to be paid by said company, as aforesaid, as fast as required by the city in paying for the construction of the said viaduct and the lateral and other approaches thereto. and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repair to be done pursuant to the direction of the city council, under the supervision of the commissioner of public works; and the permission and authority hereby granted are upon the further express condition that the said railroad company shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its tracks on any street or streets crossed by its tracks, except said Polk street above provided for, with proper approaches thereto, as the city council may from time to time require: provided, however, that when any such viaduct, except said Polk street viaduct above provided for, cannot be constructed across the tracks of said railroad company without crossing the track or tracks of some other railroad company or companies, the said Chicago, Burlington and Quincy Railroad Company shall only be obliged to join such other railroad company or companies in paying the expense of erecting, constructing, maintaining and keeping in repair such viaduct and approaches, and to pay its fair proportion of such expense as between it and such other company or companies; and if such other railroad company or companies shall not join said Chicago, Burlington and Quincy Railroad Company in payink said expenses, then, when the proportion of said other company or companies shall be otherwise provided, the said Chicago, Burlington and Quincy Railroad Company shall pay what would be its fair proportion of said expense in case such other company or comnies should join with it in the payment of said expenses as aforesaid. Said viaduct or viaducts, and approaches thereto, to be constructed according to the plans and specifications of the department of public works. Said Chicago, Burlington and Quincy Railroad

Company shall furnish sufficient outlets for the private property bounded by Harrison, Twelfth, Beach streets and the South Branch of the Chicago river." South Canal street, from Lumber street to the river, on the side of the property of William O. Tegtmeyer, as appears from the record, is now paved with a cedar-block pavement, in good condition; having been laid only about four years. His assessment was $750. The court confirmed the assessment against McFarlane and Tegtmeyer, and they have appealed to this court, and ask a reversal of the judgment.

Smoot & Eyer, for appellant Hugh McFarlane. Lackner, Butz & Miller, for appellant William O. Tegtmeyer. Charles M. Walker, Corp. Counsel, and Armand F. Teefy, Asst. Corp. Counsel, for appellee.

PER CURIAM. It is first contended that the court erred in holding that the property of appellants should be assessed for the paving of the approaches to the Polk Street and Harrison Street Viaducts. The evidence shows that within the limits of the improvement provided by the ordinance there are three approaches leading to the viaducts on Canal street, which extend east and west on streets intersecting Canal street. One of the approaches is at the north end of the improvement on Canal street, and leads up to the viaduct on Harrison street. The other two approaches lead up to the viaduct on Polk street. These approaches are each about 300 feet long. They are the full width of the pavement, and are supported by retaining walls of stone masonry, making about 900 lineal feet of pavement upon the approaches, for which appellants insist they should not be assessed. Section 1 of the foregoing ordinance of the city of Chicago, passed December 20, 1880, granted permission to the Chicago, Burlington & Quincy Railroad Company to construct tracks between West Harrison street and West Twelfth street. By section 3 of this ordinance the privileges granted by section 1 were "upon the express conditions that the said railroad company shall pay, or cause to be paid, to the city of Chicago the cost and expense of constructing and erecting a new viaduct on Polk street over the railroad tracks crossing said street, between Canal street and the Polk Street Bridge, together with all proper lateral and other approaches necessary thereto, the money necessary therefor to be paid by said company, as aforesaid, as fast as required by the city in paying for the construction of said viaduct and the lateral and other approaches thereto, and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repaid to be done pursuant to the direction of the city council." It was further provided in this section that "the permission and authority hereby granted are upon the further express condition that the said railroad company

shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its tracks on any street or streets crossed by its tracks, except said Polk street above provided for, with proper approaches thereto, as the city council may from time to time require." There was also a further proviso that, when any such viaduct could not be constructed across the tracks of said railroad company without crossing the track or tracks of some other railroad company, the Chicago, Burlington & Quincy Railroad Company should only be obliged to join such other railroad company in paying the expense of erecting, constructing, maintaining, and keeping in repair such viaduct and its approaches, which were to be constructed according to the plans and specifications of the department of public works. In other words, in consideration that the railroad company should construct, maintain, and keep in repair these viaducts and approaches, the city council granted to the Chicago, Burlington & Quincy Railroad Company the right to lay its tracks in certain places named in the ordinance. The object of the city was to protect itself from erecting or maintaining these viaducts and approaches, by reason of the concessions granted to the railroad. The evidence tends to show the viaducts and approaches were constructed in 1881, and paved with cedar blocks by the railroad company at that time. The word "approaches" must be held to include the retaining walls, the filling with dirt, and the paving and roadway, suitable for the use for which it was intended. This construction of the ordinance is further sustained by the fact that when the approaches were first constructed the pavement was not made by the property owners, but by the railroad company. The ordinance says the railroad company "shall maintain and keep in repair the approaches,"-not some particular portion thereof, but the whole structure, and without expense or cost to the city of Chicago. As counsel for appellants suggest, just as the word "bridge" would include the floor or roadway, so "approach" must include the pavement and roadway thereof.

The case of Hayes v. Railroad Co., 9 Hun, 63, seems to be in point. There an action was brought by Thomas Hayes against the New York Central & Hudson River Railway Company for injuries received by him by being thrown from his wagon on the north approach of the bridge crossing the defendant's tracks at West Albany. Upon condition that the railroad company would maintain the bridge, permission had been given to construct this bridge over the crossing at West Albany, and the bridge was constructed and maintained by the defendant. There were approaches to the ends of the bridge, which sloped up to them, and the surface of one of these approaches was out of repair, because of which plaintiff was injured. It was contended by the railroad company that the obli

gation to construct and maintain the bridge did not include the maintenance of the approaches, but the court held that the approaches were a necessary part of the bridge; that the railroad company could hardly be permitted to erect a bridge, and not construct the means of reaching it, and that in undertaking to build the bridge they undertook to make it accessible; and that what they undertook to construct they should maintain in repair. It was further contended by the railroad company that, even though they might be obliged to maintain the approaches, the maintenance did not apply to the surface of the roadway, and that this should be kept in order by the commissioner of highways; but the court, following the case of Railway Co. v. Dale, 8 El. & Bl. 836, held that maintaining the bridge included, not only the substructure and the support of the approaches, but the roadway as well. In the case of Railway Co. v. Dale, 8 El. & Bl. 836, above referred to, the same question arose. In that case a railroad company had carried a road over the railway by a bridge, and had constructed approaches of earth, with embankments to support the same. The depth of the earthwork and embankment, measuring from the surface of the former road, was about 15 feet on one side of the bridge, and about 21 feet on the other. The bridge and the approaches were constructed pursuant to a special statute, and pursuant to this statute notice was given to the railway company to put the bridge and approaches in good condition and repair. The order was not complied with, and the question arose as to whether or not the railway company, under this particular act, was obligated by law to maintain in repair the whole of said road, or what part thereof. The phrase of the statute which imposed the duty upon the railway company is that "such bridge, with the immediate approaches, and all other necessary work connected therewith, shall be constructed and at all times thereafter maintained at the expense of the company." Lord Campbell, C. J., says that it is clear that this section creates the obligation for which the respondent contends. "I cannot imagine language more conclusively creating an obligation. What is to be done in the first instance? It is said that the act distinguishes between a structure and a superstructure, but, clearly, the obligation which it imposes is not discharged by merely putting in arches. The work must be completed so as to be fit for the passage of carriages. Till then, the act is not complied with. But when constructed it is to be maintained, and the road as well as the superstructure was to be made. There is no inconvenience. On the contrary, the inconvenience would be the other way, if different bodies had to maintain the bridge and the road." Under the ordinance granting permission to the Chicago, Burlington & Quincy Railroad Company to construct tracks between West Harrison and West Twelfth

streets on the express conditions that the railroad company should pay the expense of constructing and erecting the viaduct on Polk street, with all proper laterals and approaches necessary thereto, and all viaducts over its tracks, and of maintaining and keeping in repair such viaducts and approaches, it was the duty of that railway company, or other railroads, as provided in the ordinance, to pave the approaches on Canal street to the Polk Street and Harrison Street Viaducts; and it was error to assess the appellants' property for the paving of these approaches, as held by this court in Cummings v. City of Chicago, 144 Ill. 563, 33 N. E. 854.

It is also urged that the ordinance for the improvement is unreasonable, oppressive, and void, for the reason that it provides for repaving with brick that portion of South Canal street between the southeasterly line of Lumber street and the South Branch of the Chicago river, now well and sufficiently paved. It appears from the record that that portion of South Canal street between the southeasterly line of Lumber street and a point 180 feet southeasterly of that line is that portion of South Canal street lying between the southeasterly line of Lumber street and the river, and embraces the whole Canal street frontage of appellant Tegtmeyer's property. It also appears that portion of South Canal street is now paved with a cedar-block pavement, and is in very good condition, being put down about four years ago; that Tegtmeyer's property is not accessible from South Canal street, on account of the approach to the bridge; that access to his property is wholly from Lumber street. It further appears that another portion of South Canal street-a viaduct-within the limits of this improvement, and extending about a block and a half, paved with wooden-block pavement, is omitted from the proposed improvement by the ordinance in question. Why it is excepted, does not appear. The 180 feet from Lumber street to the river, to which appellant Tegtmeyer objects, is the south end of the proposed pavement. It is not denied but that this cedarblock pavement along the frontage of Tegtmeyer's property was in good condition when the ordinance was passed, and at the time of the trial. Is it not unreasonable to compel him to pay for a brick pavement, when there is a good pavement along the frontage of his property, which has been in use only about four years, and when it appears that another piece of block pavement within the limits of the improvement is omitted? There is nothing in the evidence showing that a brick pavement is required in this particular locality, or that it is a better pavement than block pavement, or that the block pavement is in bad condition. It appears to us that the ordinance in this case imposes an unreasonable burden on appellant Tegtmeyer, by compelling him to pay for a brick pavement when there is a good cedar-block pavement, which has only been laid about four years, and is in

good condition. In the case of Hawes v. City of Chicago, 158 Ill. 653, 42 N. E. 373, 30 L. R. A. 225, this court reversed a judgment of the county court of Cook county confirming a special assessment which provided for the laying of a cement sidewalk, because the owner of the property, about six months before, had put down a plank sidewalk in accordance with an order of the common council of the city of Chicago, and which was shown to be in good condition at the time of the passage of the ordinance for the cement sidewalk. We there said (page 657, 158 Ill., page 374, 42 N. E., and page 226, 30 L. R. A.): "An ordinance must be reasonable, and if it is unreasonable, unjust, and oppressive, the courts will hold it invalid and void. City of Chicago v. Rumpff, 45 Ill. 90; Tugman v. City of Chicago, 78 Ill. 405. The question of the reasonableness or unreasonableness of a municipal ordinance is one for the decision of the court, and in determining that question the court will have regard to all the existing circumstances or contemporaneous conditions, the objects sought to be obtained, and the necessity or want of necessity for its adoption. Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 Ill. 37; City of Lake View v. Tate, 130 Ill. 247, 27 N. E. 791, 6 L. R. A. 268; 1 Dill. Mun. Corp, § 327." So far as the ordinance affects the property of Tegtmeyer, it is unreasonable and oppressive, and consequently void. The judgment of confirmation as to the property of appellants, Hugh McFarlane and William O. Tegtmeyer, will be reversed, and the cause will be remanded. versed and remanded.

Re

(185 Ill. 354)

CLARKE et al. v. CITY OF CHICAGO. (Supreme Court of Illinois. April 17, 1900.) MUNICIPAL CORPORATIONS-LOCAL IMPROVEMENTS-ASSESSMENTS-VALIDITY.

1. Act June 14, 1897, § 7, provides that. where a proposed improvement is to be paid for by special assessment, the board of local improvements shall adopt a resolution describing the improvement, and fixing a time for a public hearing on the necessity and estimated cost thereof, and requires that the engineer's itemized estimate be made a part of the record of the resolution. Section 8 provides that after such public hearing the board shall adopt a new resolution abandoning, modifying, or adhering to the proposed improvement, and, if it be not abandoned, that the board shall cause an ordinance therefor to be prepared and submitted to the council. Held, where a resolution proposing a street improvement to cost $25,500 was properly passed, that a subsequent resolution to take the place thereof, proposing the same improvement, but at a cost of $29,500. passed without a public hearing being granted thereon, or an itemized estimate being made therefor, was void.

2. Act June 14, 1897, § 9, provides that the recommendation of the board of local improvements "shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and, if a variance be shown on proceedings in court, it shall not affect the validity of the proceedings, unless the court deem the same willful or substantial." Held, where a resolution recommending a pro

posed street improvement showed on its face that an itemized estimate of the cost thereof had not been made for submission to interested property holders, as required by section 7 of the act, that the resolution showed a "substantial" variance from the requirements of the law, and was void.

3. Where a valid resolution of the board of local improvements recommending a proposed street improvement to cost $25,500, and an ordinance of the council authorizing the levy of assessments therefor, were vacated, and another resolution and ordinance were passed in lieu thereof, authorizing the same improvement, but at a cost of $4,000 more, objections to the validity of the second ordinance for the want of the preliminary hearing on the question of the estimate, required by Act June 14, 1897, § 7. cannot be cured by a motion, made at the hearing to confirm the assessment levied thereunder, to reduce the assessment to the amount nained in the first ordinance, since, the ordinance being invalid for want of the requir ed preliminary hearing, the court had no jurisdiction to entertain any proceeding based there

or.

Appeal from Cook county court; O. N. Carter, Judge.

Proceedings by the city of Chicago to confirm a special assessment levied for street improvements. From a judgment confirming the assessment, Eliot C. Clarke and others appeal. Reversed.

This is an appeal from a judgment of the county court, rendered on October 12, 1899, confirming a special assessment levied for the purpose of curbing, grading, and paving Clybourn avenue from the north curb line of Division street to the north line of North avenue, in the city of Chicago. On December 27, 1898, there was a regular meeting of the board of local improvements in the city of Chicago, at which a resolution was adopted for the making of the local improvement above referred to. The resolution thus adopted on December 27, 1898, gave, in the body of it, the estimate of the cost of the improvement made by the city engineer as being $25,500, and provided that Wednesday, January 18, 1899, at 3 o'clock p. m., at room 400, in the city hall, should be fixed as the time and place for public consideration of said resolution. There was a regular meeting of the board on January 18, 1899, at the place aforesaid, and a public hearing was then and there had upon the proposed improvement, in accordance with the notices posted and mailed for the same. On February 9, 1899, there was an adjourned meeting of said board, at which, on recommendation of the superintendent of streets, a resolution was adopted that said local improvement be made and adhered to pursuant to prior resolutions theretofore passed by the board. On March 6, 1899, an ordinance was passed by the city council providing for said improvement, and that the cost of the same should be raised by special assessment. On April 8, 1899, a petition was filed in the county court of Cook county, asking for the levying of a special assessment for said improvement, to which petition was attached a certified copy of said ordinance of March 6, 1899; and attached to

said petition and ordinance were the recommendation of the board of local improvements that the improvement be made, and the estimate of the city engineer and engineer of the board, estimating the cost of the improvement at $25,500, which estimate was itemized. Section 2 of the ordinance of March 6, 1899, approved the recommendation of the board of local improvements and the estimate of the cost of the improvement so made by the engineer of said board. On the same day, April 8, 1899, the court entered an order that one John A. May be directed to make an assessment of the cost of the improvement upon the city and the property specially benefited by the improvement, and also on the same day made an order that the Chicago Democrat be designated as the newspaper for the publication of the special assessment notice. The petition, so filed on April 8, 1899, with the ordinance of March 8, 1899, and the recommendation of the board of local improvements, and the estimate of the cost of the improvement at $25,500 thereto attached, remained pending and undisposed of until September 12, 1899. On the latter day, to wit, September 12, 1899, the court made an order that all judgments of confirmation theretofore entered in said proceeding shall be vacated and set aside, and the assessment roll withdrawn, and the petition for the assessment be dismissed. The above facts appear from the testimony introduced in the present proceeding by the petitioner, the city of Chicago, and also by the present appellants, the objecting property owners. During the period between April 8, 1899, and September 12, 1899, while the petition for a special assessment to pay the cost of the said improvement, estimated at $25,500, was pending, a new petition for a special assessment to pay for the same improvement, estimated at a cost of $29,500, was filed, which petition was the one in pursuance of which the judgment here appealed from was rendered; and the proceedings, preceding the filing of the said petition, which was filed on June 17, 1899, and following the filing of the same, were as follows: On May 17, 1899, there was a regular meeting of the board of local improvements of the city of Chicago, at which the following resolution was adopted: "Whereas, on the 27th day of December, 1898, a resolution was adopted by the board of local improvements providing for the improvement of Clybourn avenue from the north curb line of Division street to the north line of North avenue, which said resolution was based upon an estimate made by the city engineer; and whereas, afterwards, to wit, a public meeting was had upon this proposed improvement in accordance with the statute; and whereas, at said public hearing it was decided by the said board to proceed with the said improvement, and a resolution was adopted accordingly, and in accordance therewith an ordinance was sent to the city council and duly passed, and a petition has been filed in the county court for the confirmation, praying