HENRY H. GAGE V. THE CITY OF CHICAGO. Filed at Ottawa March 28, 1896-Rehearing denied October 7, 1896. 1. SPECIAL ASSESSMENTS-sufficiency of petition-defective certificate of city clerk to ordinance-effect. A petition for a special assessment for a street improvement does not fail to recite the ordinance, as required by the statute, because the certificate of the clerk, attached to the copy of the ordinance annexed to such petition, does not show that the ordinance was passed. 2. SAME—what is a sufficient recital of report of commissioners in petition. A petition for a special assessment sufficiently recites the report of the commissioners by averring that the commissioners appointed to estimate the cost of the improvement made a report estimating the cost at a certain sum, which was approved by the council, and stating that a copy of the report is attached to and made part of the petition. 3. SAME-omission of ordinance from record—presumptions as to passage. Where, on appeal from the confirmation of a special assessment, the ordinance put in evidence is by stipulation omitted from the bill of exceptions, it will be presumed such ordinance showed enough to establish that it was in force when the commissioners made and returned their estimate, notwithstanding the statutory provision that ordinances shall not take effect for five days unless approved by the mayor. sewers. 4. SAME-ordinance for paving and curbing includes adjustment of An ordinance for the curbing and paving of a street sufficiently includes the adjustment of sewers necessary to guard against taking up parts of the work after it is finished. APPEAL from the County Court of Cook county; the Hon. O. N. CARTER, Judge, presiding. GAIL E. DEMING, for appellant: The provisions of the statute require that the petition shall recite the ordinance for the proposed improvement. 1 Starr & Cur. 270; East St. Louis v. Albrecht, 150 Ill. 511. It is necessary that the city allege and prove that a valid ordinance was passed by the city council. Lindsay v. Chicago, 115 Ill. 122. 162 313 169 391 171 268 162 313 177 342 162 313 183 59 The first step to be taken in making a local improvement is the passage of a valid ordinance. East St. Louis v. Albrecht, 150 Ill. 506; Carlyle v. County of Clinton, 140 id. 512; Clark v. Chicago, 155 id. 225; Railroad Co. v. Jacksonville, 114 id. 562; Lindsay v. Chicago, 115 id. 120. No petition to assess the cost of the improvement can be filed until a valid estimate is filed. Clark v. Chicago, 155 Ill. 223. The ordinance must be so definite that an intelligent estimate of the cost of the improvement can be made from the specifications and description set out in the ordiGage v. Chicago, 143 Ill. 157; Hyde Park v. Carton, 132 id. 100; Levy v. Chicago, 113 id. 652; Kankakee v. Potter, 119 id. 324; Carlyle v. County of Clinton, 140 id. 512; Hyde Park v. Spencer, 118 id. 458. nance. To give the commissioners discretion to estimate the cost of improvements not specified would be delegating to them the powers and functions of the city council, which cannot be done. Foss v. Chicago, 56 Ill. 354; Jenks v. Chicago, id. 397; Wright v. Chicago, 60 id. 312; Bryan v. Chicago, id. 507; Walker v. Chicago, 62 id. 286; Railroad Co. v. Chicago, 144 id. 391; Moore v. Chicago, 60 id. 243; Hyde Park v. Carton, 132 id. 100. JOHN D. ADAIR, for appellee: It is too late, after having contested the case upon the merits, to take advantage of a defect in the ordinance, if there was one, which might have been cured by proof, even assuming none was offered. Huston v. Clark, 112 Ill. 135; Miller v. Glass, 118 id. 443. The power to pave streets includes the power to furnish and do all that is necessary, usual or fit for paving, and on this ground it has been held that the expense of grading a street preparatory to paving is incident to paving, and the expense is properly included in the assessment. State v. Elizabeth, 30 N. J. L. 365; Williams v. Detroit, 2 Mich. 560; Schenly v. Commonwealth, 36 Pa. St. 29. An item for relaying gas-pipes is properly included in an assessment for a sewer. Matter of Johnson, 103 N. Y. 260. The assessment may properly include incidentals. Longworth v. Cincinnati, 34 Ohio St. 101; Dashiel v. Baltimore, 45 Md. 615; Matter of Mutual Life Ins. Co. 89 N. Y. 530. This court, in Delamater v. Chicago, 158 Ill. 575, has announced a conclusion which disposes of the contention of appellant. Mr. CHIEF JUSTICE CRAIG delivered the opinion of the court: This is an appeal from a judgment of the county court of Cook county confirming a special assessment levied to pay for the improvement of Parmelee street, in Chicago. It is contended, first, that the petition does not state a valid ordinance upon which to base an assessment. The petition, omitting the heading, was as follows: "Your petitioner, the city of Chicago, respectfully shows, that heretofore, to-wit, on the 7th day of November, A. D. 1894, the city council of said city did pass an ordinance providing that Parmelee street, from the east line of Western avenue to the west line of Hoyne avenue, in the city of Chicago, county of Cook and State of Illinois, be curbed with curb walls, filled, and paved with wooden-block pavement, a certified copy of which ordinance, and of the approval thereof by the mayor of said city, is hereunto annexed and made a part hereof; that the commissioners appointed by said council to make an estimate of the cost of the improvement by said ordinance, heretofore, to-wit, on the 12th day of November, A. D. 1894, made a report to said city council, (which was afterwards approved by said council,) estimating such cost at $22,195.79,-a true copy of which report is annexed hereto and made a part hereof. Your petitioner prays that the cost of said improvement may be assessed in the manner prescribed by law." It is signed, "Harry Rubens, Corpo ration Counsel." Then follows a document entitled "Report and ordinance for improvement of streets," etc., as follows: "To the Mayor and Aldermen of the city of Chicago, in city council assembled: In accordance with an order of your honorable body, I submit herewith an ordinance for curbing, filling and paving Parmelee street, from Western avenue to Hoyne avenue. "Respectfully submitted, October 31, 1894. H. J. JONES, Com. Public Works." This is undoubtedly the document called "Report," which is entirely separate and distinct from the ordinance. Following the above and attached to the petition is a paper, as follows: "Ordinance for the improvement of Parmelee street, from the east line of Western avenue to the west line of Hoyne avenue, in the city of Chicago, county of Cook and State of Illinois.-Be it ordained by the city council of the city of Chicago." Then follow six sections, the last of which is as follows: "This ordinance shall be in force from and after its passage." On the back of the ordinance is this endorsement: "Ordinance passed and deposited in the office of the city clerk Nov. 7, 1894.-Chas. D. Gasterfield, city clerk." Attached to the ordinance is the certificate, under seal, of the city clerk, in which he certifies that "the annexed and foregoing is a true and correct copy of document No. 4016 of 1894-5, and of the indorsements thereon, the same being a certain 'report and ordinance' on file in my office." There was also attached to the petition a report of the commissioners, estimating the entire cost of the improvement at $22,195.79, dated November 12, 1894, and an order of approval on the same day. Section 22 of article 9 of the City and Village act (Hurd's Stat. 1889, p. 263,) provides what the petition shall contain, as follows: "The petition shall be in the name of the corporation, and shall recite the ordinance for the proposed improvement and the report of such commission, and shall pray that the cost of such improvement may be assessed in the manner prescribed by law." It is said in the argument that the certificate of the clerk attached to the ordinance does not show that it was passed. Conceding that to be true, the certificate has no bearing on the validity of the petition. The section of the statute which controls the petition requires, first, that it shall be in the name of the corporation; second, it shall recite the ordinance and the report of the commissioners appointed to estimate the cost of the improvement; and third, it shall pray that the cost of the improvement may be assessed in the manner prescribed by law. These are the facts required to be set out in the petition, and when they are alleged the petition will be sufficient. The pleader, in framing a petition, is not called upon to go beyond the demands of the statute and set up facts not required by it, and any matter set out in the petition not required by the statute is surplusage, and may be rejected as such in passing upon the validity of a petition. The statute nowhere requires that the ordinance set out in the petition should be certified, or that there shall be an averment that it was approved by the mayor, or that it should aver in what manner the ordinance took effect. Here the petition was in the name of the corporation. It prayed that the cost of the improvement be assessed in the manner prescribed by law. The only remaining question is, did it recite the ordinance and report of the commissioners. As to the report of the commissioners, it is averred that the commissioners appointed to estimate the cost of the improvement did make a report estimating the cost at a certain sum, which was approved by the council, a copy of which report was attached to the petition and made a part thereof. This is all that could be required. The next inquiry is, what construction is to be placed on the words "recite the ordinance," as used in the statute? It is alleged in the petition that on the 7th day of |