{ "id": 3442348, "name": "The City of Park Ridge, Appellee, vs. Albert Wisner, Appellant", "name_abbreviation": "City of Park Ridge v. Wisner", "decision_date": "1912-02-23", "docket_number": "", "first_page": "360", "last_page": "364", "citations": [ { "type": "official", "cite": "253 Ill. 360" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "238 Ill. 254", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3426882 ], "opinion_index": 0, "case_paths": [ "/ill/238/0254-01" ] }, { "cite": "222 Ill. 144", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3339299 ], "opinion_index": 0, "case_paths": [ "/ill/222/0144-01" ] }, { "cite": "243 Ill. 123", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3414656 ], "opinion_index": 0, "case_paths": [ "/ill/243/0123-01" ] }, { "cite": "186 Ill. 251", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3227343 ], "opinion_index": 0, "case_paths": [ "/ill/186/0251-01" ] }, { "cite": "114 Ill, 562", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2869984 ], "opinion_index": 0, "case_paths": [ "/ill/114/0562-01" ] }, { "cite": "213 Ill. 452", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3314453 ], "opinion_index": 0, "case_paths": [ "/ill/213/0452-01" ] }, { "cite": "249 Ill. 190", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5643904 ], "opinion_index": 0, "case_paths": [ "/ill/249/0190-01" ] }, { "cite": "233 Ill. 553", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3379119 ], "opinion_index": 0, "case_paths": [ "/ill/233/0553-01" ] }, { "cite": "225 Ill. 154", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3330558 ], "opinion_index": 0, "case_paths": [ "/ill/225/0154-01" ] } ], "analysis": { "cardinality": 477, "char_count": 9543, "ocr_confidence": 0.707, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6017816096614127 }, "sha256": "2c968473f0da35cb68afaaf6cf078f3ba122ea03a9ee7205bd27d74d0ea6d03e", "simhash": "1:98c2ed09827f2522", "word_count": 1611 }, "last_updated": "2023-07-14T17:53:56.303877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The City of Park Ridge, Appellee, vs. Albert Wisner, Appellant." ], "opinions": [ { "text": "Mr. Chief Justice Carter\ndelivered the opinion of the court:\nThis is an appeal from a judgment of the county court of Cook county overruling legal objections and confirming an assessment for paving with macadam Center street, in the city of Park Ridge, from the easterly line of Washington street to the eastern limits of the city.\nThe first question necessary to be decided is whether the case is properly here. It is urged by the appellee that further controversy was not waived as to the remaining questions on the record after the hearing of the legal objections. This was unnecessary, as the question of benefits was submitted to and decided by the trial judge (jury being waived) after the legal objections were overruled. The objection as to the judgment was properly preserved in the record and the judgment was appealable.\nThe total cost of the improvement was estimated to be $4401.07. One of the items was, \u201cLawful expenses, 264.07.\u201d It is argued by appellant that it is impossible to tell what elements of cost are included in the phrase \u201clawful expenses;\u201d that this item should have read, \u201cCost of making, levying and collecting the assessment;\u201d that expenses not proper to be made a part of the cost for collecting and levying might be included in the phrase \u201clawful expenses.\u201d The decisions of this court in Snydacker v. Village of West Hammond, 225 Ill. 154, Northwestern University v. Village of Wilmette, 230 id. 80, and Gage v. Village of Wilmette, 230 id. 428, dispose of this objection contrary to appellant\u2019s contention. In those cases it was held that the term \u201clawful expenses\u201d would not cover those that were unlawful. It is also urged that the $264.07 should be itemized. This court held to the contrary in the decisions last cited and in City of East St. Louis v. Davis, 233 Ill. 553.\nIt is further objected that the estimate is not properly itemized as to gutters. The item of the estimate covering the pavement and gutters reads: \u201c2867 square yards of macadam paving, [here follows a specific description of the materials entering into the macadam,] including the cost of constructing gutters at $1.50, $3727.10.\u201d Reading the estimate and the ordinance together, (City of Hillsboro v. Grassel, 249 Ill. 190,) it appears that the pavement itself is so graded and constructed as to form the gutters along the sides of the roadway. It is clear that the material entering into the construction of the pavement is identical with that of the gutters. The gutters do not form separate, essential, component elements of the improvement. It would therefore serve no useful purpose to have the cost of the gutters itemized separately. The authorities cited by appellant on this point refer to cases where the gutters were made of different material from the pavement itself. Under such circumstances the gutters form a separate, substantial, component element of the improvement and should be itemized separately from the pavement itself. (Hulbert v. City of Chicago, 213 Ill. 452, and cases cited.) Such is not the case here.\nAppellant further urges that the description as to the binder for the top course is so vague and uncertain as to render the ordinance invalid. The ordinance provides that this binder is to be made of \u201clake asphalt, or some other equally good bituminous asphalt binder.\u201d Proof was offered on the part of appellant tending to show that there are two kinds of lake asphalt, and it is argued that as this evidence tended to show that the two kinds were somewhat different in character, the ordinance set up a \u201cdouble standard\u201d as to the asphalt. In Jacksonville Railway Co. v. City of Jacksonville, 114 Ill, 562, this court upheld an ordinance which provided that the foundation of a brick pavement should be \u201claid of cinders, sand, gravel, or other materials equally suitable.\u201d In Hintze v. City of Elgin, 186 Ill. 251, this court held an ordinance good which provided \u201call brick to be used shall be made of pure shale of equal quality to that found in Galesburg, Glen Carbon and Streator, in the State of Illinois, and Canton, in the State of Ohio.\u201d Following these decisions this objection must be overruled.\nIt is further objected that as the testimony of a witness for appellant tended to show that lake asphalt, unless it was fluxed, would not make a proper binder for a top course, and as from this witness\u2019 testimony it must be concluded that the ordinance, properly construed, could only mean pure asphalt, the improvement could not be constructed in a workmanlike manner, as provided in the ordinance. This witness did testify, on direct examination, that he would construe the ordinance as meaning pure asphalt, but, taking all his examination together, direct and cross, (the abstract and the record do not agree as to his evidence,) the conclusion can be fairly reached that he thought the reasonable presumption, from reading the whole ordinance, was that the term \u201clake asphalt binder\u201d would mean lake asphalt so treated that it could be used for a top dressing binder. While the ordinance is not well worded in this regard, we think it is fairly susceptible of this latter construction. When two constructions of an ordinance are possible, one of which will render it invalid and the other sustain it, the court will adopt that construction which sustains it. (City of Chicago v. Wilshire, 243 Ill. 123, and cases cited.) Under somewhat similar ordinances this court has held a description of a binder course sufficient. Chicago Union Traction Co. v. City of Chicago, 222 Ill. 144; Same v. Same, 223 id. 37.\nIt is further objected by appellant that the assessment exceeds the benefits. Several witnesses testified both for the city and the objector on. this point. The testimony of various witnesses as to the amount of benefits to the property was not in harmony. The jury was waived and this question heard by the court. The trial court saw and heard the witnesses. Its finding should not be disturbed on this question unless the weight of the testimony was palpably against it, (City of Chicago v. Marsh, 238 Ill. 254; Topliff v. City of Chicago, 196 id. 215;) and on this record we are not disposed to do so.\nOne of the witnesses for the city on the question of benefits having stated, on cross-examination, that the property objected for was capable of subdivision, counsel for appellant asked, \u201cHow many streets do you think it would be necessary to put in there, running north and south, to subdivide it?\u201d and the witness answered, \u201cI haven\u2019t given it any thought and I don\u2019t intend to do so.\u201d The court refused to require a different answer. The last part of the answer should have been stricken 'out. However, if the witness had not given any thought to the matter his opinion as to the number of streets necessary would have been of no material assistance to the court, and therefore it was not reversible error not to compel him to answer the question further.\nThere are some other questions discussed in the briefs of minor importance, but in view of the conclusions already reached we deem it unnecessary to consider them.\nThe judgment of the county court will be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Chief Justice Carter" } ], "attorneys": [ "George A. Mason, for appellant.", "John S. Dornbraser, (George Burry, City Attorney, of counsel,) for appellee." ], "corrections": "", "head_matter": "The City of Park Ridge, Appellee, vs. Albert Wisner, Appellant.\nOpinion filed February 23, 1912.\n1. Special assessments\u2014when judgment is appealable though further controversy is not waived. Where the question of benefits is submitted and decided after the overruling of the legal objections the judgment is appealable, notwithstanding further controversy was not waived as to the remaining questions on the record after the overruling of the legal objections.\n2. Same\u2014item of estimate for lump sum for \u201clawful expenses\u201d does not invalidate assessment. . An item of the engineer\u2019s estimate reading, \u201cLawful expenses, $264.07,\u201d does not invalidate the assessment upon the alleged ground that the amount should have been itemized and should have been designated as fo\u00bb \u201ccost of making, levying and collecting the assessment.\u201d\n3. Same\u2014when cost of gutters need not be itemised separately. An item of the engineer\u2019s estimate for a certain number of square yards of described macadam pavement, \u201cincluding cost of gutters,\u201d is not objectionable upon the alleged ground that the cost of constructing the gutters should have been itemized separately, where it appears, by reading the estimate and ordinance together, that the pavement itself is to be so constructed as to form the gutters.\n4. Same\u2014when a description of binder for the top course of pavement is not too vague. A description of the binder for the top course of the pavement, which requires the binder to be made of \u201clake asphalt, or some other equally good bituminous asphalt binder,\u201d is not so uncertain as to render the ordinance invalid.\n5. Same\u2014if possible, an ordinance should be so construed as to sustain it. If an ordinance is susceptible of two constructions, one of which will render it valid and the other invalid, courts should adopt the construction which will sustain it.\n6. Same\u2014finding upon question of benefits should not be disturbed unless clearly against weight of evidence. Where the question of benefits is tried by the court, its finding, based upon the testimony of witnesses seen and heard by the court, should not be disturbed by a court of review unless clearly against the weight of the evidence.\nAppear from the County Court of Cook county; the Hon. David T. Smirry, Judge, presiding.\nGeorge A. Mason, for appellant.\nJohn S. Dornbraser, (George Burry, City Attorney, of counsel,) for appellee." }, "file_name": "0360-01", "first_page_order": 360, "last_page_order": 364 }