author: Mr. Chief Justice Shops

text:
    The County of Adams v. The City of Quincy.

      Filed at Springfield

      October 31, 1889.

      1. Special assessment—special taxation—for local improvements— powers under the constitution of 1848, and that of 1870. Under the taxing power conferred upon cities, etc., by section 5, article 9, of the constitution of 1848, special assessments imposing unequal burdens upon property were not authorized; but the power of cities and villages to make local improvements by special assessment of property thereby benefited, was sustained, as an exercise of the right of eminent domain.
    2. But under the constitution of 1870, special assessments by cities and villages can not be levied under the right of eminent domain, for the reason that property taken for the public use can not be compensated for in benefits. Benefits are only allowed as a set-off to damages to property not taken. Under the present constitution, the levying of special assessments must be regarded as a species of taxation.
    3. Same—local public improvements—of the several modes of providing therefor. Under section 9, article 9, of the present constitution, •cities and villages may be vested with power to levy and collect taxes, both general and special. The former must be uniform in respect to persons and property, while taxation of contiguous property for local public improvements has no limitation as to uniformity and equality.
    4. Under the power conferred by this clause of the constitution, the legislature may authorize local public improvements to be made by special assessments, to the extent the property assessed will be benefited, or by special taxation of contiguous property according to its frontage upon the proposed improvement, or according to its value, or by general taxation for corporate purposes, or partly by general taxation and partly by special assessments, or by special taxation. Either of these modes involves taxation, either general or special. Both special assessments and special taxation are treated by the constitution as a species of taxation, for corporate purposes.
    5. The power vested in cities and villages to make local improvements by special assessments, special taxation, etc., must be exercised by the passage of an ordinance prescribing the mode to be pursued, and whether the improvement shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both. When the improvement is ordered to be made by special taxation, the method of its levy, assessment and collection is pointed out in the act as being the same as prescribed for the making, levying and collection of special assessments.
    6. Section 19 of the act provides, that whenever such local improvements are to be made, wholly or in part, by special assessment, an ordinance shall be passed to that effect, specifying therein the nature, character, locality and description of such improvements. The 20th section provides for the appointment of a committee of the council or board of trustees, or three other competent persons, to make an estimate of the cost of the proposed improvement, including labor, material, and all other expenses attending the same, and the cost of making and levying the assessment, who shall report the same in writing to the council or board of trustees, and that upon approval of such report by the council, etc., they may order a petition to be filed in the county court, etc. These several provisions are alike applicable to the proceeding by special assessment and by special taxation.
    7. Same—“contiguous property”—in what it consists. The words “contiguous property,” as used in the statute in relation to special taxation for local improvements, are to be understood in their popular sense; the word “contiguous” meaning, “in actual or close contact,” “touching,” or “near.” If the improvement is of a street or sidewalk, contiguous property is such as abuts upon the street or sidewalk or is bounded by the street.
    8. Same—of the ordinance—requisites—construction. In case of special taxation, the amount to be assessed to each tract or particular lot can be known only upon the report of the cost of the improvement, which must be ascertained and reported by the committee to the city council or board of trustees. The ordinance must specify the nature, character, locality and description of the work, fully and in sufficient detail; but the statute does not require that it shall set forth the details and all the particulars of the work. A substantial compliance with these provisions is all that is required.
    9. It is not necessary that the ordinance shall state the width of the streets to be paved, in order to enable the committee to estimate the cost of the proposed improvement. The width of the street may easily be ascertained by the committee, and an ordinance requiring the pavement of a street will not be construed to require the pavement of the existing sidewalk.
    10. Same—ordinance-—whether embracing more than one improvement. An ordinance for the paving of several streets and alleys, and parts of streets, with the same material and in the same way, is not obnoxious to the objection that it embraces more than one improvement, although there may be a difference in the width of the streets to be paved.
    11. Same—report of committee—approval thereof. The action of the city council in ordering the filing of its petition to the county court for the appointment of commissioners to ascertain the cost of the improvement and levy the special tax, may be regarded as an approval of the report of the committee.
    12. Same—exemption—generally—and as to county court house. As the burden of taxation ought to fall equally on all, statutes exempting persons or property are construed with strictness, and the exemption should be denied, unless so clearly granted as to be free from fair doubt. Such statutes will be construed most strongly against those claiming the exemption.
    13. Although a special assessment is in the nature of a tax, and is a branch of the taxing power, yet a general statute exempting certain property does not exempt if from liability for an assessment levied for the improvement of a street upon which it abuts or is contiguous.
    14. Property owned by a county for a court house is not exempt from special taxation by a city, levied for the purpose of paving a street upon which the same abuts.
    15. Amendment—proceedings of city council. Where the record of the proceedings of a city council fails to show its action in approving the report of one of its committees, the council, at a subsequent meeting, may amend the record so as to show the fact.
    Appeal from the County Court of Adams county; the Hon. Benjamin F. Berrian, Judge, presiding.
    Mr. Almeron Wheat, for the appellant:
    The court house, together with the grounds on which it was erected, not exceeding four acres, was exempt from taxation under the ordinance. 2 Starr & Curtis’ Stat. 2027; Const. art. 9 ; art. 9 of the act of 1872, to provide for the incorporation of cities and villages; People v. Pierce, 90 Ill. 85; Leindecker v. People, 98 id. 21; Potwin v. Johnson, 106 id. 532; People v. Springer, id. 542; Herhold v. Chicago, id. 547; Chicago v. People, 80 id. 384; Chicago v. Larned, 34 id. 203; Board of Trustees v. Board of Supervisors, 76 id; 184; Guild v. Chicago, 82 id. 474; Galesburg v. Searles, 114 id. 219; County of McLean v. Bloomington, 106 id. 209.
    The ordinance was defective in respect to two things: First, it did not state the amount of the special taxes to be levied, or give any data by which the amount of the same could be ascertained or determined. (Springfield, v. Green, 120 Ill. 269; Sterling v. Galt, 117 id. 16.) Second, the ordinance is also defective in not sufficiently specifying the extent and quantity of the paving ordered. Sterling v. Galt, 117 Ill. 16; Kankakee v. Potter, 119 id. 324.
    An estimate by the commissioners, of the cost of the improvement ordered, after the adoption of the ordinance, is not the proper way, in cases of special taxation, to determine the amount of taxes to be apportioned; and the estimate of such cost, by the commissioners appointed by the ordinance, was without authority of law, and void as a means for furnishing the commissioners to apportion the tax, information of the amount of tax to be apportioned. Enos v. Springfield, 113 Ill. 71; Sterling v. Galt, 117 id. 16.
    If it was necessary in this case that the commissioners appointed by the city council should make an estimate of the cost of the improvement contemplated by the ordinance, then it was also necessary that the report of their estimate should be approved by the council, before any petition could be filed or action taken in the matter in the county court. This was not done. Also, whether such estimate of the cost of the improvement was necessary or not, it was necessary that there should be an order of the council for the filing of the petition in the county court, before that court assumed jurisdiction in the matter. But there was none.
    If an estimate of the cost of the improvement after the adoption of the ordinance was necessary, and the proper way to determine the amount of the tax to be apportioned, then the estimate should be limited to the improvement ordered, which was not done in this case. Cities act, art. 9, sec. 19; Levy v. Chicago, 113 Ill. 650; Sterling v. Galt, 117 id. 16; Kankakee v. Potter, 119 id. 324; Foss v. Chicago, 56 id. 354; Railroad Co. v. Chicago, id. 454; Follansbee v. Chicago, 62 id. 288.

      The improvement, by paving, of streets, one of which is ten feet wider than the rest, to be paid for by special taxation, can not legally be provided for in one and the same ordinance.
    The court below improperly admitted in evidence, against the objection of the county, certain records and papers. These were: First, the paper on the fourth page, of which there purported to be an order approving the report of the commissioners appointed to make an estimate of cost; second, the proceedings of the city council, at its special meeting, held October 25, 1887, and the call for the meeting; and third, the paper written by the city clerk and pasted in the journal.
    Mr. J. Sibley, for the appellee:
    The objection that the ordinance passed by the city council of Quincy, June 6, 1887, is void, because it did not fix the cost of the proposed improvement, or furnish any sufficient data from which the commissioners appointed by the county court to assess and apportion the special tax against the property contiguous to and touching on the line of the contemplated improvement, is not well taken. White v. People, 94 Ill. 604; Craw v. Tolano, 96 id. 255; Enos v. Springfield, 113 id. 65; Galesburg v. Searles, 114 id. 217; Watson v. Chicago, 115 id. 78; Sterling v. Galt, 117 id. 11; Kankakee v. Potter, 119 id. 324; Springfield v. Green, 120 id. 269; Springfield v. Mathus, 124 id. 88; Wilbur v. Springfield, 123 id. 395.
    The ordinance is not void on the ground that it embraces more than one improvement, nor because Broadway street is a few feet wider than Hampshire or Sixth street. The improvement contemplated, although portions of these streets are included in the ordinance, evidently was intended as but one single improvement. Prout v. People, 83 Ill. 155; People v. Sherman, id. 167; Ricketts v. Hyde Park, 85 id. 110; Wilbur v. Springfield, 123 id. 395; Springfield v. Green, 120 id. 269; Murphy v. Peoria, 119 id. 509; Springfield v. Mathus, 124 id. 88.

      The ordinance does sufficiently describe the nature, character and locality of the improvement. Lake v. Decatur, 91 Ill. 596; People v. Sherman, 83 id. 165; Levy v. Chicago, 113 id. 650; Railway Co. v. Jacksonville, 114 id. 562.
    The objection that the report of the commissioners appointed by the city council to estimate the cost of the improvement was never approved by the city council, is not sustained by the evidence in the case. It was shown by the paper read in evidence on the trial, taken from the files in the office of the city clerk, that the city council, at its meeting July 5, 1887, did approve of this report, though the approval was not at the time entered upon the journals of the proceedings. If this was not sufficient, the city council had, like any other legislative body, the right to order its journal amended according to the fact, at a meeting of October 25, 1887, even after the trial had commenced. Turley v. County of Logan, 17 Ill. 151; Logansport v. Crockett, 64 Ind. 319; McCormick v. Bay City, 23 Mich. 457; Commissioners v. Hearn, 59 Ala. 371; Stow v. Burlington, 45 Iowa, 87; Dillon on Mun. Corp. secs. 231, 234, note 1.
    The objection that the appellant’s property is exempt from the special tax, in this proceeding, rests upon no solid foundation, in principle or reason. The exemption applies only to general taxation, and not to special taxation for local improvements. Canal Trustees v. Chicago, 12 Ill. 403; Higgins v. Chicago, 18 id. 276; Trustees v. Free Church, 20 id. 423; Chicago v. Colby, id. 614; Mix v. Ross, 57 id. 121; Peoria v. Kidder, 26 id. 352; Scammon v. Chicago, 42 id. 192; Wright v. Chicago, 46 id. 44; Cook County v. Chicago, 103 id. 646; 11 Johns. 77; Cemetery v. Buffalo, 46 N. Y. 506; Rosevelt Hospital v. Mayor, 84 id. 108; Seamen’s Society v. Mayor, 116 Mass. 181; Sheehan v. Hospital, 50 Mo. 155 ; First Presbyterian Church v. Fort Wayne, 36 Ind. 338; Bridgeport v. Railroad Co. 36 Conn. 255; Brightman v. Kerman, 22 Wis. 54; Duluth Bridge Co. v. Dubuque, 32 Iowa, 427; Sioux City v. School District, 55 id. 150; Northern Liberties v. St. John’s Church, 13 Pa. St. 104; Patterson v. Society, 4 Zabr. 385; State v. Newark, 35 N. J. 157; State v. Newark, 3 Dutcher, 185; Baltimore v. Cemetery Co. 7 Md. 517; Lefever v. Mayor, 2 Mich. 586; Cooley’s Const. Lim. 207, note 3.
    The position assumed, that although the county property is not exempt from special assessments for local improvements, yet it is exempt from special taxation for that purpose, is not tenable, as it makes a distinction without any difference,—for the proceeding by special assessment is nothing less than a tax of a peculiar nature. People v. Mayor, 4 N. Y. 419; Nichols v. Bridgeport, 23 Conn. 207; Matter of Van Antwerp, 55 N. Y. 261; Matter of St. Joseph Asylum, 69 id. 353; Rosevelt Hospital v. Mayor, 84 id. 108; Bridgeport v. Railroad Co. 36 Conn. 255; State v. St. Louis, 62 Mo. 244; Baltimore v. Cemetery Co. 7 Md. 517; State v. Newark, 35 N. J. 157; Weeks v. Milwaukee, 10 Wis. 186; Seamen’s Society v. Mayor, 116 Mass. 181; Palmer v. Stumph, 29 Ind. 329; Railroad Co. v. Connelly, 10 Ohio St. 160; Cooley’s Const. Lim. 606, 650; Dillon on Mun. Corp. (3d ed.) sec. 777.
    Mr. T. B. Pape, City Attorney, also for the appellee:
    Laws for the exemption of property from taxation are strictly construed. Hoge v. Railroad Co. 99 U. S. 348; Cooley on Taxation, 205, 206 ; Tax Appeal Court v. Rice, 50 Md. 302; Miller v. Commonwealth, 27 Gratt. 110; South Bend v. University, 69 Ind. 344; Cook County v. Chicago, 103 Ill. 646.
    As to the distinction between a general tax and a special tax for a local improvement, see Craw v. Tolono, 96 Ill. 255; Brooks v. Baltimore, 48 Md. 265; Seamen’s Society v. Mayor, 116 Mass. 181; Lefever v. Mayor, 2 Mich. 587; Siox; City v. School District, 55 Iowa, 151; People v. Auditor, 46 Ill. 384; Murphy v. People, 120 id. 234; Cook County v. Chicago, 103 id. 646.
   Mr. Chief Justice Shops

delivered the opinion of the Court:

The city of Quincy made application to the county court of Adams county for an order confirming the report of commissioners appointed to levy a special tax upon lots, parts of lots and tracts of land contiguous to and touching upon the line of certain streets proposed to be paved, in accordance with an ordinance of the city. The county of Adams-owns a block in the city, bounded partly by the street ordered to be improved, upon which block is situated the court house of the county. This block was assessed its proportionate share of the cost of the proposed improvement, according to its frontage upon the streets to be improved. The county appeared and filed various objections to the report, all of which were overruled, and judgment of confirmation entered- The county brings the case to this court by appeal, and assigns for error the overruling of such objections, and the rendition of the judgment.

The principal point urged upon our. attention is, that the ■property, being the property of the county, and used solely for public purposes, is exempt from taxation. All public buildings belonging to any county are, by the statute, in terms, exempted from taxation. (Eev. Stat. chap. 120, sec. 2.) That the property here sought to be charged with the cost of this local improvement is exempted by the statute from general taxation, there can be no question; but does this exemption extend to and embrace special taxation of contiguous property to defray the expenses of such local improvement ?

This court has repeatedly held that special assessments for local improvements are not taxes, in the strict sense of that term, and that property held for a public use is not exempt from such assessment, although exempt from taxation for general purposes. (See Canal Trustees v. Chicago, 12 Ill. 403; Higgins v. Chicago, 18 id. 276; Chicago v. Colby, 20 id. 614; Peoria v. Kidder, 26 id. 351; Scammon v. Chicago, 42 id. 192; Wright v. Chicago, 46 id. 44; Mix v. Ross, 57 id. 121.) And that other property exempted by statute from general taxation, such as church property, etc., may be specially assessed for local improvements. Ottawa v. Trustees, 20 Ill. 423; Cook County v. Chicago, 103 id. 646; McLean County v. Bloomington, 106 id. 209. See, also, Boston Seaman Society v. Mayor 116 Mass. 181.

Section 5, of article 9, of the constitution of 1848, provided that “the corporate authorities of counties, townships, school districts, cities, towns and .villages may be vested with-power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.” A tax for the-opening or improvement of a public street, or other local improvement, may be said to be a tax for a corporate purpose,, and while this clause of the constitution authorized the legislature to invest municipal corporate authorities with power to assess and colleét taxes for corporate purposes, that power was limited and restricted in this, that such taxes must be uniform in respect of persons and property. This prohibited, the levy of special assessments upon property to be benefited, by the proposed improvement, when it would have to bear more than its proportionate share of the burden. It is plain that under this provision, special assessments imposing unequal burdens upon property could not be sustained, under the power of taxation given by the clause of the constitution quoted. This court, however, sustained the power of cities, and villages to make local improvements by special assessments, referring such power to the exercise of the right of eminent domain. (Chicago v. Lamed, 34 Ill. 276.) Inthatca'se this court said: “Entertaining no doubt that this grant of power to the city council is against the fundamental law regulating the subject of taxation, we are compelled, by a sense-of our own duty, so to declare, and to-hold an assessment for improvement made on the basis of the frontage of the lots upon the street to be improved, invalid, as containing neither-the element of equality nor uniformity, if assessed under the taxing power; and if in exercise of the right of eminent domain, equally invalid, no compensation whatever being provided or even contemplated by the charter.” Ibid. 282.

Charters conferring powers to levy special assessments for local public improvements by cities and villages for special benefits thereby conferred, were sustained and the power held to be properly exercised under the right of eminent domain. In that view, the assessment upon a lot was not regarded as a burden or tax, in the strict sense, for the reason that the owner would receive benefits at least equal to the sum levied or assessed upon his property. Hence we find, in many cases arising under the old constitution, the statement that special assessments are not taxes, etc. It is apparent that to have held them to be taxes would have been to deny their validity. As the constitution of 1848 did not require that the compensation for property taken for public use should be in money, the power to levy special assessments on contiguous property equal to the benefit conferred by the improvement, might well be referred to the power of eminent domain, and thereby sustain the constitutionality of laws authorizing such levies and assessments. Under the present constitution, property taken for public use can not be compensated for in benefits. Benefits are only allowed as a set-off, or reduction of damages, to such parts of the property as are not taken. In cases where benefits are sought to be charged, the land owner must appear to be entitled to damages, otherwise he can not be charged with benefits. Here, the county is claiming no damage of the city, and therefore it can not be charged with benefits. It follows, therefore, that since the adoption of the present constitution the power to make special assessments for local improvements can not be referred to and sustained under the right of eminent domain.

Under the present constitution, special assessment for local improvements must be regarded as a species of taxation. In 2 Dillon on Mun. Corp. (3d ed.) sec. 735, the author says: “And it is, as we shall presently see, by virtue of a branch of this great power (of taxation) that local assessments upon property specially benefited, or legislatively declared to be specially benefited, are imposed, in order to pay the expense of making local improvements of a public nature within the municipality, adjoining or near the property assessed.”

The-constitution of 1870 (art. 9, sec. 9,) provides, that “the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.” This clause of the constitution is radi-' cally different from the clause in the constitution of 1848, relating to the same subject matter, and hereinbefore quoted, and under which the former rulings referred to arose. As to such special taxation of contiguous property for local improvements there is, in the present constitution, no limitation as to equality and uniformity, while for all other municipal purposes taxation is required to be uniform in respect to persons and property, as was provided in the prior constitution. Taxation for general corporate purposes must therefore be uniform, while for local improvements it may be by special tax or by way of special assessment upon the contiguous property. Thus such special assessments are clearly recognized as a mode of municipal taxation.

In the case of County of McLean v. Bloomington, supra, this court says: “The distinction between taxation and special assessment is clearly made in the constitution, (secs. 1, 5, 9, art. 9,) and while providing that the General Assembly may exempt the property of the State, counties and other municipal corporations from the former, (sec. 3-, supra,) makes no such provision in regard to the latter, but on the contrary, by section 9, supra, authorizes the General Assembly to ‘vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments,’—clearly recognizing special assessments, without any restriction as to the property to be assessed.” What is there said is equally applicable in respect to special taxation for, local improvements. (See White v. The People, 94 Ill. 612; Rev. Stat. chap. 24, art. 8, sec 5.) So in Illinois Central Railroad Co. v. City of Decatur, 126 Ill. 92, it was expressly ruled that the exemption of the Illinois Central railroad from taxation had no application to special assessment of contiguous property imposed by the city for local improvements.

Under this grant of power (sec. 9, art. 9,) the legislature may authorize local public improvements to be made by special assessments to the extent the property assessed will be benefited, or by special taxation of contiguous property according to its frontage upon the proposed improvement or according to its value, or by general taxation for corporate purposes, or partly by general taxation and partly by special assessment or special taxation. Either one of these modes involves taxation, either general or special. (White v. People, 94 Ill. 617.) The levy of such local assessment or special tax is not a taking of private property for public use under the right of eminent domain, but is an exercise of the taxing power. (2 Dillon on Mun. Corp. sec. 596; Allen v. Drew, 44 Vt. 175.) It is true that special taxation differs, in some respects, from special assessments, when made for the purposes of local improvement ; but both are placed by the constitution in the same category and class. They are both treated as a species of taxation for corporate purposes.

The question, however, remains, whether the legislature, in the exercise of the power, has exempted the property held for county purposes from either special assessments or special taxation for local improvements. On this subject it is said by Dillon (2 Mun. Corp. sees. 776, 777): “As the burden of taxation ought to fall equally on all, statutes exempting persons or property are construed with strictness, and the exemption should be denied unless so clearly granted as to be free from fair doubt. Such statutes will be construed most strongly against those claiming the exemption. Although an ‘assessment’ is in the-nature of a tax, and is authorized by or is a branch of the taxing power, yet a general statute exempting certain property (as, for example, churches,) from taxation by any law of the State, does not exempt it from liability for a street assessment. So the exemption of property of a cemetery company from ‘any tax or public imposition whatever,’ does not exempt it from a paving tax for improving a street in front of the property, the court, in an opinion elaborately examining the subject, holding that the intent of the legislature was to exempt the property from all taxes or imposition for the purpose of revenue, but not to exonerate it from charges inseparably incident to its location with respect to other property.” See, also, Trustees v. McConnel, 12 Ill. 138; University v. People, 80 id. 333; Mayor v. Brooklyn, 4 Coms. 419; Sharp v. Spear, 4 Hill, 76 ; In re M. E. Church, 66 N. Y. 395; Boston Society v. Boston, 116 Mass. 181; Buffalo City Cemetery v. Buffalo, 46 N. Y. 503; Ottaioa v. Spencer, 40 Ill. 211; McLean County v. Bloomington, supra; People v. Western Society, 87 Ill. 246.

The statute relied on as creating the exemption is not found in the law authorizing special taxation, but in the chapter relating to the general subject of revenue; and while all are parts of the same revision, it was, we have no doubt, intended to apply to taxation for general revenue. The tax sought to be collected in this case is for a special purpose,—the improvement of certain parts of certain streets within the city, upon which the particular property abuts. If collected it will form no part of the general revenue of the city. If the legislature had intended to exempt property used for public purposes from special taxation or assessment, very different language, it seems to us, would have been employed, so as to exclude all doubt upon the subject. The city authorities have determined that the property of the county will be benefited by the special tax levy,—at least they have exercised a power clearly delegated by the legislature, and that is conclusive, in the absence of fraud or abuse of the power thus vested in them.

We are óf opinion that the property of the county is liable to special taxation, as other property, and that there is no warrant for the exemption claimed. This disposes of the principal question, but various minor objections are urged to the proceeding and to the legality of most of the steps taken to make and confirm this assessment, some of which will be noticed.

The legislature, under ample constitutional authority, have, by section 1 of article 9 of the Cities and Village act, vested the corporate authorities of cities and villages “with power to make local improvements by special assessment or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.” This power must be exercised by the passage of an ordinance prescribing the mode to be pursued, and whether the improvement shall be made by special assessment or by special taxation of contiguous property, or general taxation, or both. The word “contiguous” is here used in its popular sense, and means, “in actual or close contact,” “touching,” “adjacent” or “near.” If the improvement is of a street or sidewalk, contiguous property is such as abuts upon the street or sidewalk or is bounded by the street. When the ordinance provides that the improvement shall be made by general taxation, the cost thereof is added to the general appropriation bill of such city or village, and is to be levied and collected with, and as a part of, the general taxes of the city or village. When the local improvement is ordered to be made by special taxation, the method of its levy, assessment and collection is specially pointed out in the act as being the same as prescribed for the making, levying and collection of special assessments. (Secs. 18 to 51.) The provisions relating to special assessments, so far as they may be applicable, are required to be observed in cases of special taxation. Section 19 of the act provides, that whenever such local improvements are to be made, wholly or in part, by special assessment, an ordinance shall be passed to that effect, specifying therein the nature, character, locality and description of such improvements. Provision is made by the 20th section for the appointment of a committee of the council or board of trustees, or three competent persons, to make an estimate of the cost of the improvement contemplated by the ordinance, including labor, material and all other expenses attending the same, and the cost of making and levying the assessment, who shall report the same in writing to the council or board of trustees. Upon approval of such report by the council or board -of trustees, they may order a petition to be filed in the county court, etc. These several provisions are alike applicable to the proceeding by special assessment and by special taxation. It is manifest that in cases of special taxation the amount to be assessed against each particular tract or lot can be known only upon report of the cost of the improvement, etc., and must be ascertained and reported by the committee to the city council or board of trustees. The ordinance passed in this case specifies the nature, character, locality and description of the work fully and in sufficient detail. As said in City of Kankakee v. Potter, 119 Ill. 328: • “It is not expected that an ordinance of this kind should set forth the details and all the particulars of the work. Indeed, this is not contemplated, and the statute requires nothing of the kind. A substantial compliance with these provisions is all that is required.”

It was not necessary for the ordinance passed by the city to state the width of the streets to be paved, in order to enable the committee to estimate the cost of the proposed improvement. The width of the street was a matter of easy ascertainment. The ordinance required the paving of the street, and can not, we think, be construed to require the paving of the then existing sidewalks. It was clearly not so understood by any of the city authorities or by anyone acting for them. We are of opinion that the ordinance was in this particular sufficiently definite and certain. See Jacksonville Ry. Co. v. Jacksonville, 114 Ill. 562.

It is said by appellant’s counsel, that as one of the streets is ten feet wider than the rest, improvements to be paid for by special taxation can not legally be provided for in one and the same ordinance. In City of Springfield v. Green, 120 Ill. 269, it was held that an ordinance providing for the paving of several streets and alleys, and parts of streets, with the same material, and in the same way, is not obnoxious to the objection that it embraces more than one improvement, although' there may be a difference in the width of the streets proposed to be paved, and the cost of paving certain railway tracks is excluded from the assessment in respect of some of said streets. We regard this, and the subsequent case of Wilbur v. City of Springfield, 123 Ill. 395, as- determining the question here presented, adversely to the contention of counsel.

It is also said that the application to the county court was made before the city council had approved the report of the commissioners appointed by them to make an estimate of the cost of the proposed improvement. The petition to the county court showed that the city council had approved of the report of its committee, and there was evidence before that court tending to support this contention. This objection does not go to the merits, and we see no reason why the. action of the city council in ordering the presentation of its petition to the county court was not of itself an approval of the action of the commissioners. However this may be, it was shown that the city council, at its meeting in July, 1887, approved said report. The right of the city council to amend the records of its meetings, to make them accord with the fact, is not questioned, and it is shown that the record was amended by order of the city council so as to show a formal approval of the report made by the committee appointed by the council to levy said special tax, prior to the application to the county court.

Upon full consideration of the entire record and of the points made by counsel, we find no substantial objection to the proceedings, and no error for which the judgment should be reversed, and it will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Wilson Ames v. Robert Moir et al.

      Filed at Ottawa

      October 31, 1889.

    1. Contracts—contract in writing—not signed by the party sought to be charged. Where one party gives another his written agreement to purchase personal property, in which the buyer and seller are both named, and the price to be paid and the time of the delivery are fixed, such written contract will bind the seller receiving it, the same as if he also had signed it. Such a paper is a written contract, within the meaning of the first section of the Limitation act of November 5,1849.
    2. Sales—refusal of buyer to pay—on delivery or offer to deliver— -rights and remedies of the seller. A contract for the sale of goods can not be rescinded, and at the same time an action be maintained upon it for the contract price of the goods. But where the purchaser fraudulently obtains possession without paying, delivery and payment being concurrent acts, the vendor may repossess himself of the property by replevin, and thereby preserve his lien for the price, without rescinding the sale.
    3. Where the buyer of goods refuses to pay on delivery, or an offer to deliver the goods, the vendor may store the same for the buyer, give notice that he has done so, and then recover the full contract price; or he may keep the goods, and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery; or the vendor may sell the goods to the best advantage, and recover of the vendee the loss, if the goods fail to bring the contract price.

      4. The vendor’s remedy, after a re-sale, made in the absence of an express reservation of the right, is in assumpsit on the original contract, which will not be rescinded by the re-sale. So when the vendor is unable to regain possession of his goods wrongfully taken, for the reason that the fraudulent vendee has pledged them to an innocent party, without notice of the vendor’s rights, the latter, notwithstanding he may have replevied the goods, may sue the vendee for the original price, when such vendor is finally defeated in his action of replevin.
    5. Same—fraud on part of buyer—evidence to establish it. Under a contract to purchase one hundred barrels of highwines at a given price per gallon, the vendor to deliver within a given time after being called on for that purpose, the purchaser induced the agents of the vendor to deliver the highwines, and before the delivery was completed, absente d himself, so that no demand of payment could be made. The vendor’s agent then placed the goods in the vendee’s warehouse, in the charge of the porter of the warehouse, till the next morning. During the night the vendee shipped all the goods to distant points, drawing money on bills drawn by him on the consignee: Held, that the debt of the vendee was not entirely created until the highwines were placed in his possession, and that these were facts from which the jury might infer fraud, within the meaning of the Bankrupt law.
    6. On an issue whether a debt was created by the fraud of the defendant, within the meaning of the Bankrupt law, any evidence is competent which tends to establish fraud on his part. Its sufficiency to prove fraud is a question for the jury.

      7. Agency—authority of agent. A defendant offered to prove that he settled a prior suit of replevin with the plaintiff’s agents a short time after it was commenced, which the court refused to allow, lío authority was shown in the agents to make any settlement: Held, that the proposed evidence was properly refused. Without authority the alleged agents could not bind their supposed principal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. John C. Reid, and Mr. William H. Barnum, for the appellant:
    The paper in this case is not “other evidence of indebtedness in writing,” within the meaning of the Statute of Limitations. It is not a contract, for want of mutuality. Derickson v. Krause, 4 Bradw. 510; Olney v. Howe, 89 Ill. 560; McKin

      ley v. Watkins, 13 id. 142; 1 Parsons on Contracts, (5th ed.) 449, 582; Waggeman v. Bracken, 52 Ill. 469; Railroad Co. v. Johnson, 34 id. 389; Dunning v. Price, 56 id. 338 ; Jassoy v. Horn, 64 id. 379; Boards. Shipley, 77 Ind. 550; Stagg v. Compton, 81 id. 171; Pulse v. Miller, 81 id. 190; Board v. Miller, 87 id. 257; McCurdy v. Bowes, 88 id. 583; High v. Board, 92 id. 580; Heckleman v. Board, 94 id. 36; Higham v. Harris, 108 id. 247; Tomlinson v. Briles, 101 id. 538.
    Moir & Co. never became a party to the writing, they never having signed it, so as to make it binding on them. Thomas v. Caldwell, 50 Ill. 140; Kalamazoo v. MeCallister, 40 Mich. 84; Baker v. Johnson County, 33 Iowa, 151; Iron Works v. Newhall, 34 Conn. 70; De Burski v. Paige, 47 Barb. 172.
    When a sale is rescinded for fraud, no recovery can be had on the contract for the price agreed upon. Doane v. Lockwood, 115 Ill. 490; Kellogg v. Turpie, 93 id. 265; Moller v. Tuska, 87 N. Y. 166; Bowen v. Mandeville, 95 id. 240; Butler v. Hildreth, 5 Metc. 49.
    ’ Beplevin to gain possession of the goods is evidence of a rescission of the sale. Foundry Co. v. Hersee, 103 N. Y. 27; Powers v. Benedict, 88 id. 605; Burnett v. Smith, 4 Gray, 52.
    Messrs. Edsall & Edsall for the appellees:
    A written contract signed by only one of the parties thereto, but accepted and acted upon by the other, is the contract of both parties, and subject to all the incidents of written contracts, and consequently can not be varied by parol. Brandon Manf. Co. v. Morse, 48 Vt. 322; Abrams v. Pomeroy, 13 Ill. 133; McCloskey v. McCormick, 37 id. 66; Liverpool Bank v. Eccles, 4 H. & N. 139; Harnor v. Groves, 80 E. C. L. 667; Hooker v. Hyde, 61 Wis. 204; Bishop on Contracts, (1st ed.) chap. 13, secs. 167, 173; Bishop on Contracts, (enlarged ed.) secs. 342, 364; Leake on Law of Contracts, 183, 184.
    The contract appears to have been fully executed or performed on the part of appellees. In such case, mutuality in its obligations becomes immaterial. Mills v. Blackall, 63 E. C. L. 358.
    The limited option as to time of delivery of the wines within the month of July did not vitiate the contract. Logan v. Musick, 81 Ill. 415.
    The action was founded on a simple contract in writing, and not upon promises not in writing, and therefore the case is governed by the first section of the Limitation law of November 5, 1849, prescribing sixteen years’ limitation, and not by the second section, prescribing a limitation of five years. Gross’ Stat. (ed. of 1869,) 430.
    The sixteen years’ limitation applies to actions founded on executory contracts in writing, of this character, signed only by the defendant, and to cases where it requires proof not appearing upon the face of the papers sued on, to make out a cause of action. Railroad Co. v. Johnson, 34 Ill. 389; Dunning v. Price, 56 id. 3.38; Wing v. Evans, 73 Iowa, 409; Prevatt v. Runyon, 12 Ind. 174.
    The acts or declarations of an assumed agent who has no authority can not be made the basis of an estoppel. Railroad Co. v. Hay, 119 Ill. 494.
    The contract was a sale for cash, and not upon credit. When the one hundred barrels of highwines were called for by Ames, and selected and identified, and delivered at Ames’ store by appellees’ agents as the goods sold under this contract, the general property in the wines passed to Ames, while a lien for the contract price, or a special property therein, remained in the appellees until the goods were paid for or the lien was waived. Benjamin on Sales, (ed. of 1888, Bennett’s notes,) secs. 1, 358, 796; Wade v. Moffett, 21 Ill. 110; Webster v. Granger, 78 id. 230; Hare on Contracts, pp. 436, 446-451, 455.
    Ames failing to pay for the highwines, as required by the contract, when the same were delivered under the contract •with the expectation.of immediate payment, the appellees, as against him, had the right to retain (or regain, if necessary,) the possession of the goods, sell them at the market price, and sue him on the contract, and recover that portion of the contract price not paid by the application thereto of the net proceeds of the re-sale. Bagley v. Findlay, 82 Ill. 524; Ullmann v. Kent, 60 id. 271; Saladin v. Mitchell, 45 id. 79 ; Canadian Bank v. McCrea, 106 id. 283; Benjamin on Sales, (2d ed.) p. 730, secs. 788, 794; Dustin v. McAndrews, 44 N. Y. 72; Hare on Contracts, 449.
    The right of a vendor, under such circumstances, when payment is refused, to re-sell the goods to enforce his vendor’s lien, is undeniable. Bagley v. Findlay, 82 Ill. 524; Benjamin on Sales, secs. 787, 788, 794.
    The very existence of a vendor’s lien presupposes a valid contract of sale. In contemplation of law, the vendor makes the re-sale as the vendee’s pledgee or agent, thus recognizing the general property in the goods to be in the vendee, and that the contract of sale is still subsisting. And such re-sale, to enforce a vendor’s lien, will not operate as a rescission or disaffirmance of the original contract of sale. Ibid.; McLean v. Dunn, 13 E. C. L. 710; Ullmann v. Kent, 60 Ill. 271.
    If notice of re-sale was necessary, the bringing of the replevin suit was sufficient. (Saladin v. Mitchell, 45 Ill. 85.) But the established rule in this State is, that such notice is unnecessary. Ullmann v. Kent, 60 Ill. 271.
    There can be no estoppel by the election of an inconsistent remedy, without knowledge of the party’s rights, and of the facts affecting the same, so that he may fairly and understandingly make an election of remedies. 1 Bigelow on Estoppel, (2d ed.) 503; 1 Herman on Estoppel, (ed. of 1886,) p. 1147, sec. 1029 ; 2 Story’s Eq. Jur. sec. 1097; Cowdrey v. Hitchcock, 103 Ill. 271; Foundry Co. v. Hersee, 103 N. Y. 25; Hays v. Midas, 104 id. 602; Derickson v. Krause, 4 Bradw. 507; Kraus v. Thompson, 30 Minn. 66; Tillotson v. Mitchell, 111 Ill. 519.

      When the discharge in bankruptcy is pleaded, the plaintiff may reply that the debt was created by the fraud of the defendant. Bump on Bankruptcy, (3d ed.) 742; Stewart v. Emerson, 52 N. H. 301; Classen v. Schoenemann, 80 Ill. 304; Stokes v. Mason, 10 R. I. 261; Broadnax v. Bradford, 50 Ala. 270.
    Intentionally and wrongfully disposing of the highwines without the knowledge or consent of the plaintiffs, in such manner as to destroy their vendors’ lien thereon, and thereby defrauding them of the contract price, constitutes such actual or positive fraud as to prevent the debt thus created being barred by the discharge in bankruptcy. Classen v. Schoenemann, 80 Ill. 304; Darling v. Woodward, 54 Vt. 101.
    It was unnecessary that the fraudulent intent should have existed when the contract was made. It was sufficient that the fraud was perpetrated when the debt was finally created. Hinckley v. Lewis, 45 Ill. 327; Mathews v. Cowan, 59 id. 342.
    The making of the contract did not completely create the debt. This was only one of the incipient steps in that direction. The debt was not fully created until the wines were conditionally delivered, when Ames, by his wrongful act, fraudulently converted the conditional delivery into an absolute one in favor of his pledgee, and thereby defeated the vendors’ lien without paying for the wines, as required by the contract. The debt was thus created by the actual and positive fraud of the defendant, within the meaning of the Bankrupt act. Classen v. Schoenemann, 80 Ill. 304; Darling v. Woodward, 54 Vt. 101.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Bobert Moir & Co., in the Superior Court of Cook county, against Wilson Ames, to recover the price of one hundred barrels of highwines sold by the plaintiffs to the defendant on the 9th day of June, 1870. The action was brought upon a contract in writing, which was as follows:

“Chicago, June 9, 1870.
“I have this day bought of Robert Moir & Co. one hundred (100) barrels highwines, ‘iron bound,’ at one dollar seven cents .($1.07) per proof gallon. The conditions of sale are as follows: The buyer can call from 1st July to 20th of same month by giving three days’ notice, and if not called for by the 20th July, the seller has the privilege of delivering up to the end of July by giving three days’ notice, to be delivered in fifty barrel lots. To insure the fulfillment of this contract, a margin of $300 will be put up by both parties.
Wilson Ames.”

. This instrument of writing, after it was executed by Ames on the day it bears date, was at once delivered to the agents of Moir & Co., and accepted by them. On the same day, a margin of $300 was put up by each party, as provided in the agreement. It also appears, that on the 15th day of July, 1870, Ames notified the agents of Moir & Co. to deliver the highwines. Upon receipt of the notice, the highwines were, on July 18, delivered by Moir & Co., and accepted by Ames, but Ames has never paid for the goods.

This action was not commenced until the 13th day of January, 1886, and the first question presented by the record is, whether the action is barred by the Statute of Limitations. The statute in force at the time the agreement was executed, was the act of November 5, 1849, sections 1 and 2 of which are as follows:

“Sec. 1. All actions founded upon any promissory note, simple contract in writing, bond, judgment, or other evidence of indebtedness in writing, made, caused or entered into after the passage of this act, shall be commenced within sixteen years after the cause of action accrued, and not thereafter.

“See. 2. All actions founded upon accounts, bills of exchange, orders, or upon promises not in writing, express or implied, made after the passage of this act, shall be commenced within five years next after the cause of action shall have accrued, and not thereafter.” Gross’ Stat. (ed. 1869,) p. 430.

It is strenuously insisted in the argument, that the paper ■executed by Ames is not a simple contract in writing, within the meaning of the first section of the act of 1849. The action was commenced before the expiration of sixteen years after the cause of action accrued, and if the agreement executed by Ames is a simple contract in writing, within the meaning of ■section 1 of the act, then the action is not barred. If, on the •other hand, section 2 is to control, then the action is barred.

Bishop on Contracts, (enlarged ed.) section 163, defines a written contract as follows: “A written contract is one which in all its terms is in writing.” In Abrams v. Pomeroy, 13 Ill. 133, a contract of guaranty, executed only by the guarantor, was held to be a written contract, and that it could not be varied by parol evidence. In Illinois Central Railroad Co. v. Johnson, 34 Ill. 393, an agreement executed by the agent of "the railroad company, binding it to transport and deliver ceriain goods, was held to be a written contract, within the purview of the statute limiting actions on such contracts to sixteen years. In Dunning v. Price, 56 Ill. 338, a plea of Statute of Limitations of five years was held not to be a good plea to a count in an action of assumpsit on a written contract, wherein the assignee of a judgment agreed to pay to the judgment creditor a certain sum upon certain specified conditions. In Jassoy v. Horn, 64 Ill. 379, this court held that an action against a hank, on an account evidenced by the entries in the depositor’s bank book, was not, under the Statute of Limitaiions of 1849, barred until the lapse of sixteen years after the •cause of action accrued.

It is true the contract in question was not executed by Moir & Go.; but notwithstanding that fact, we think it was their •contract, and when they accepted it they became bound by its terms. From the face of the paper the parties to the contract ■are plainly indicated. Ames is described as the purchaser, -and Robert Moir & Co. as the sellers. The goods bought and •■sold were clearly described, and the amount to be paid and the time when the goods were to he delivered were specified; and to insure the fulfillment of the contract by the respective parties a margin of $300 was put up. Indeed, we find no element wanting in the paper to make it a complete and obligatory contract, binding upon each of the parties. When Moir & Co. accepted the paper as a contract, they became bound by its terms and conditions as completely as if they had in form signed the paper. It was, in our opinion, a contract in writing, within the meaning of the statute. See, also, Plumb v. Campbell, 129 Ill. 101.

After the highwines had been delivered, late in the afternoon of July 18, Ames absented himself from his place of business, and could not be found by the agents of Moir & Co. to make a demand of payment for. the highwines. They directed the porter in charge of Ames’ warehouse to take care of the goods until morning, when they would call for the pay. When the agents called in the morning, Ames was nowhere to be found, and they found that he had shipped fifty barrels of the high-wines for New York, and the remaining fifty barrels were loaded on cars ready for shipment. Phillips & Carmichael immediately replevied the fifty barrels which were found on cars in Chicago, and went on to Detroit, Michigan, where they overhauled the other fifty barrels, and they were also replevied. Phillips & Carmichael sold the wines thus replevied to Shufeldt & Go. at ninety-seven cents per gallon, the market price at that time, and deposited the proceeds in bank to await the result of the replevin suits. It appears that between the time the wines were delivered, late in the afternoon of July 18, and the time the agents reached Ames’ store next morning, Ames had sent all the wines to the Michigan Central depot, shipped them, obtained bills of lading, which were attached to drafts on the consignee in New York,—one for $2800, and the other for $2900,—which drafts he discounted at the National Bank of Commerce on the security of the bills of lading. The replevin suits were defended by the National Bank of Commerce, and the defense interposed, that the bank was the pledgee of the highwines from Ames, in good faith, and without notice of Moir & Co.’s rights, was, in the end, sustained, (see Michigan Central Railroad Co. v. Phillips, 60 Ill. 190,) and the money realized on the sale of the highwines to Shufeldt & Co. was turned over to the National Bank of Commerce in payment of the drafts.

In view of the fact that the wines were thus replevied and sold by the agents of Moir & Co., it is insisted that Moir & Co. elected to rescind the contract under which the highwines were sold to Ames, and having so elected, they can not now maintain an action upon it. It may be conceded that a contract for the sale of goods can not be rescinded and at the same time an action be maintained upon it for the contract price of the goods. But we do not understand that the contract in this case was rescinded, or that any effort whatever was made to rescind the contract. When the wines were delivered, Moir & Co. were entitled to payment. The delivery and payment were concurrent acts, and Moir & Co. were not bound to part with the absolute possession of the goods until they received the price named in the contract. In other words, they had a lien on the goods for the purchase money, which they were under no obligations to relinquish until payment was made. In Canadian Bank v. McCrea, 106 Ill. 281, this court held, that where goods are placed by the vendor in the hands of the purchaser in expectation that he will immediately pay the price, and he fails to do so, the vendor is at liberty to regard the delivery as conditional, and may at once reclaim the goods. But by holding the possession of the goods, or reclaiming them after the purchaser refuses to pay, the contract of sale is not thereby rescinded. The vendor merely retains possession to enforce his lien as vendor.

What are the rights of a vendor of goods where the vendee refuses to pay upon delivery or an offer to deliver goods? This question arose in Bagley v. Findlay, 82 Ill. 525, and this court held that the vendor had three remedies: First, the vendor may store the goods for the vendee, give notice that he has done so, and then recover the full contract price; second, he may keep the goods, and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery; third, the vendor may sell the goods to the best advantage, and recover of the vendee the loss, if the goods fail to bring the contract price. The same rule is laid down in Benjamin on Sales, (2d ed.) see. 788. Here, the possession of the goods was fraudulently obtained, with the view to ship them out of the State, and not pay the purchase money agreed to be paid. As against Ames, Moir & Co. had the right to replevy the goods, not for the purpose of rescinding the contract, but for the purpose of asserting the vendor's lien and holding the possession of the goods until Ames should pay for the same. It turned out, however, that the action of re-plevin was unavailing, as the goods had, by the act of Ames, passed into the custody of innocent purchasers before they were reached by the writ of replevin, and the proceeds of the goods were used in payment of the advances of the National Bank of Commerce. Benjamin on Sales, section 735, (2d ed.) says: “The vendor’s remedy, after a re-sale made in the absence of an express reservation of the right, is assumpsit on the original contract, which was not rescinded by the re-sale.” This was the course pursued here, and we regard it correct.

We have been referred, in the argument, to Kellogg v. Turpie, 93 Ill. 265, and Doane v. Lockwood, 115 id. 490, and also to cases decided in the courts of other States, where it has been held that the rescission of a contract of sale, where there was fraud in the contract, was inconsistent with a subsequent action on the contract,—that if the contract was rescinded by the vendor on the ground of fraud in the contract, a subsequent action on the contract itself could not be maintained. We concur fully in the law as laid down in these cases, but they have no application to the facts of this case. As heretofore stated, the commencement of the action of replevin was not a xeseission of the contract by Moir & Co., but it was a proceeding to enforce the vendor’s lien. To place the wines in that position the vendors had the right to hold them in until the "vendee should pay for them.

It is also contended that'Ames’ discharge in bankruptcy was a bar to the action. Section 5117 of the Bankrupt act is as follows: “No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy.” Whether the debt in this case was created by the fraud of Ames, was a question of fact, upon which the judgment of the Appellate Court is conclusive.

But it is said, incompetent evidence was admitted upon this -question. No evidence was introduced except such as tended io establish fraud on behalf of Ames, and the sufficiency of the evidence was a question for the jury.

But it is said, the debt was created when the contract was ■executed,—June 9, 1870,—and up to this time there was no fraud on the part of Ames. The debt was not entirely created until Ames induced the agents of Moir & Co. to place the wines in his possession, and if he obtained the possession by fraud, with the intent to ship the goods out of the country, and thus defeat the lien of the vendors, these were facts from which the j ury might infer fraud, within the meaning of the Bankrupt law. (Darling v. Woodward, 54 Vt. 101.) It is apparent, from the evidence, that Ames had no intention of paying for the wines when he called for them on the 15th day of July. His object seemed to be to get possession and control of the wines, and convert them to his own use, without payment. This the -evidence tends to show he did, and thus the debt was created. We think the evidence submitted to the jury was competent.

The defendant offered to prove that Ames settled the action of replevin with Phillips & Carmichael a short time after the suit was commenced. The offered evidence was excluded, and the decision of the court is relied upon as error. It nowhere-appeared that the agents had any authority from Moir & Co. to make any settlement, and in the absence of authority, what they may have done would not be binding on Moir & Co.

Objection is made to the ruling of the court in the instructions to the jury. It is said, the first and third given for the plaintiff were erroneous. The court, in those instructions,, placed a construction on the written contract read in evidence, which it was proper to do. The fourth and eighth instructions-given for plaintiff are criticized, but we perceive no substantial objection to them.

Three instructions were given for the defendant, and several others were refused, and the court gave one instruction on its-own motion. We have examined the instructions given and. those refused, and, without entering upon a discussion of those-given or refused, we are satisfied that the law involved in the-case was fairly given to the jury, and that, so far as instructions are concerned, no substantial error was committed.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Shope

text:
    George Thorn et al. v. The West Chicago Park Commissioners.

      Filed at Ottawa

      October 31, 1889.

    1. Special assessments—objections to confirmation—withinwhat time-to be filed. Notwithstanding the act of 1871 provides that all objections-to the confirmation of special assessments shall be filed in writing in the court at least three days before the time fixed for the application for judgment, the court, in the exercise of the large discretion given by the act, may, for any sufficient cause appearing, permit objections, to be filed at any time before the hearing.

      2. Same—confirmation of park assessments—by what court. An application by park commissioners for judgment of confirmation of special assessments made by them for the purpose of making a boulevard, is properly made to the circuit court, under the act of 1871.
    3. Same—park assessments—appropriating streets for boulevard purposes—conditions thereto, etc. Section 1 of the act of 1879, as amended in June, 1885, gives the boards of park commissioners power to take and select connecting streets only upon three express conditions or limitations : First, the streets so taken shall lie within the district or territory the property of which shall be taxable for the maintenance of such park ; second, the consent of the corporate authorities having the control of any such street must be obtained; and third, the consent, in writing, of the owners of a majority of the frontage of the lots and lands abutting on such street or streets shall first be obtained.
    4. The fact that park commissioners seeking to select and take a public street have first obtained,the consent, in writing, of a majority of the owners of lots abutting on such street, is necessary to their jurisdiction to assume control of such street. The burden of proof rests upon such board to establish, prima facie, at least, the jurisdictional facts, before asking a judgment confirming special assessments levied by them.
    5. The West Chicago Park Commissioners, claiming to have obtained the consent, in writing, of the owners of a majority of the lots on a street, as well as the consent of the city authorities, applied to the circuit court for a judgment confirming a special assessment on lots and lands to pay for the proposed improvement, and on the hearing gave in evidence a paper purporting to be signed by owners of lots lying on such street, or by their agents. This paper was the one acted upon by the board, and came from their custody. Omitting the names of owners signed by agents, consent of the requisite number of lot owners is not shown. The court admitted such writing over objections, holding, that it showed a prima facie right in the board: Held, that it was error to admit the paper without proof of its execution by the required number, and in case of an execution by an agent, the agent’s authority should have been shown.
    6. Where park commissioners seek confirmation of their assessment under a power conferred by statute, it is incumbent on them to show compliance with the law under which they have derived their power to impose the special assessment or burden.
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.

      Messrs. Miller, Leman & Chase, for the appellants:
    The action of the park board should correspond with the proposition to which the consent referred. Dwight v. Springfield, 4 Gray, 107.
    There was no power in the city to alienate control of these streets to the park commissioners. Kreigh v. Chicago, 86 Ill. 407; People v. Walsh, 96 id. 232.
    The power to select and take streets is given to the park commissioners under the conditions in the statute prescribed. One. of those conditions is, that “the consent, in writing, of the owners of a majority of the frontage of the lots and lands abutting on such street or streets, as far as taken, shall be first obtained.” This consent of the property owners is clearly jurisdictional, and lies at the foundation of the power of the park board to take and select the streets. Without such consent the action of the park board in taking said streets, and its subsequent proceedings, are null and void. State v. Elizabeth, 30 N. J. L. 176; Henderson v. Baltimore, 8 Md. 352; Holland v. Baltimore, 11 id. 186 ; Bouldin v. Baltimore, 15 id. 18; Kyle v. Malim, 8 Ind. 34; In re Sharp, 56 N. Y. 257; Turrill v. Grattan, 52 Col. 97; Pittsburg v. Walter, 69 Pa. St. 365 ; St. Louis v. Gleason, 89 Mo. 67 ; Hays v. City of Brooklyn, 71 N. Y. 459; Voorhees v. Bank, 10 Pet. 449; Carson v. Martin, 2 Dutch. 594.
    The circuit court should have held this alleged consent of property owners void, on account of an alteration therein, and excluded it, and held the proceedings of the park commissioners coram nonjudice, and void for want of the required consent. Graces v. Otis, 2 Hill, 466.
    The fact of consent being jurisdictional, must be shown by competent evidence. The park board offered in evidence the paper, to which we made proper objection, and insisted on the proper proof of its execution, and of the facts showing that it ivas the consent of the owners of a majority of the frontage required. No such proof was introduced, and the trial court held that it was unnecessary, and that all that was required on the part of the park board was to introduce the paper, and the offer of it in evidence made a prima facie case. This was manifest error. Henderson v. Baltimore, 8 Md. 352; Pittsburg v. Walter, 69 Pa. St. 365; State v. Elizabeth, 30 N. J. L. 176; Boyle v. Brooklyn, 71 N. Y. 1.
    The paper should have been excluded, and the objections to the assessment sustained for want of such consent.
    Mr. John M. Hamilton, and Mr. Charles C. Gilbert, for the appellees:
    The special assessment in this case was made in pursuance of the authority conferred on park commissioners, and in the manner provided for in section 3 of the act of 1871, (2 Starr & Curtis’ Stat. p. 1695,) which act has been decided by this court to be constitutional and in force, in People v. Brislin, 80 Ill. 423, and Dunham v. People, 96 id. 331.
    Section 3 of the act of 1871 provides a complete and simple method of making special assessments for the improvement of the boulevards, and the authority conferred on the park commissioners by that act, and the method of making assessments therein provided for, has been followed in practice by all the park boards in Chicago, for years, and assessments made by eminent lawyers, under that law, for boulevards, have already passed through and been approved by this court. Park Comrs. v. Railroad Co. 107 Ill. 106; People ex rel. v. Walsh, 96 id. 232.
    It thus becomes apparent that this assessment was properly and legally made, under section 3 of the act of 1871, above cited.
    The language of the statute is peremptory and mandatory. By no sort of construction can it be construed so as to leave any discretion with the court as to the time of filing objections. The language is as follows (Starr & Curtis, p. 1698): “Any person interested in any lot, block or parcel of land assessed, may appear therein, in person or by attorney, and object to said assessment: Provided, all objections shall be in writing, and be filed in said court at least three days before the time fixed for said application.”
    These objections were not filed until the day and hour fixed for the application. The circuit court had no power or discretion to permit them to be filed. That was a matter regulated by the express language of the statute.
    The constitution does not confer exclusive jurisdiction on county courts in special assessment matters. Such jurisdiction may be conferred on circuit courts. Hundley v. Comrs. of Lincoln Park, 67 Ill. 559.
    In all cases, if a construction can reasonably be given by which both acts may stand, it will be adopted. Hunt v. Railway Co. 121 Ill. 644.
    The act of 1871, under which this assessment is made, is declared constitutional and valid. People v. Brislin, 80 Ill. 423.
    The board of park commissioners for the town of West Chicago was created by an act of the General Assembly of Illinois, entitled “An act to amend the charter of the city of Chicago, to create a board of park commissioners, and to authorize a tax in the town of West Chicago, and for other purposes,” approved February 27, 1869. 1 Private Laws of 1869, 342, 353.
    This act was confirmed and supplemented by an amenda-tory act, entitled “An act supplemental to ‘An act to amend the charter of the city of Chicago, to create a board of park commissioners, and to authorize a tax in the town of West Chicago, and for other purposes, ’ approved February 27,1869,” approved April 19, 1869. 1 Private Laws of 1869, 354, 358.
    By the fourth section of the first of the above cited acts, provision is made for the organization of the board, and confers upon said board full and exclusive power to govern, manage and direct all parks, boulevards and ways authorized by the act, and by them purchased, made, laid out or established.

      By section 13, said commissioners are authorized, in the manner therein provided, to make and levy assessments for the purpose of raising money with which to pay for property acquired for park and boulevard purposes. Said section provides, among other things, that the assessment roll of levies made to pay for such property so acquired shall be filed for final confirmation in the circuit court of Cook county.
    These provisions, however, would seem to apply solely to the ■expenses incurred by the board in acquiring lands, and not to expenses incurred in improving the same. The improvement ■and maintenance of the lands for park and boulevard purposes was intended to be paid from the tax provided for in section . 16 of the act of February 27, 1869, and the proceeds of the bonds authorized to be issued by section 15 of the same act.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was a proceeding in the circuit court of Cook county, by petition of the West Chicago Park Commissioners, for confirmation of a special assessment, made by said commissioners upon the lots of appellants and others, for the making and construction of a continuous boulevard upon portions of Twelfth street and Ogden avenue, in the city of Chicago, leading from The city to Douglas Park, one of the parks under the control of appellees. The streets being within the park district, it is •claimed the commissioners acquired control of the portions Thereof included in the proposed boulevard, under and in accordance with the act of the legislature of April 9, 1879, <(2 Starr & Curtis, 1715,) as amended by the acts of June 27, 1885, and June 16, 1887, (3 Starr & Curtis, 412, 413,) and Therefore they had lawful authority to make such assessment.

Before considering whether the commissioners had taken ■such portions of said streets in conformity with the statutes, it will be proper to dispose of some of the minor contentions <of the parties, respectively:

First—It is contended by appellee, that appellants were in the court below, and are here, in no condition to object to the proceedings for confirmation of said assessment. The 3d section of the act of 1871, (Starr & Curtis, 1697, 1698,) under which act the assessment was made and the confirmation proceedings prosecuted, after providing for the return of the special assessment into the circuit court, and for notice to the lot owners, provides that “any person interested in any lot, block or parcel of land assessed, may appear therein, in person or by attorney, and object to said assessment: Provided, all objections shall be in writing, and be filed in said court at least three days before the time fixed for said application” for confirmation. In this case, the objections were not filed three days before the time fixed for the application, but on the day so fixed, upon leave of the court, were filed instanter. A motion to strike the objections from the files was made, and overruled by the court, and appellees excepted. It is now urged that the circuit court erred in permitting the objections to be filed, over the objection of appellees, and in not sustaining the motion to strike from the files, and in considering the same, for the reason that they were not filed within the time fixed by the statute. It will be observed, by reading the act in question, that a large discretion is vested in the court, in proceedings thereunder, and while appellants could not, as a matter of right, file their objections to the confirmation of the' assessment except in compliance with the statute, it was, we think, clearly competent for the court, in the exercise of a. sound discretion, for any sufficient cause appearing, to permit objections to be filed at any time before the hearing, or on the-hearing, if apparently necessary to a proper presentation of the cause. But if this were otherwise, the court did permit the objections to be filed, and if appellees desired to insist upon the alleged error in this regard, they should have assigned cross-errors, and not having done so, are in no condition to question the rulings of the circuit court.

Second—Appellants insist that the circuit court was without jurisdiction, and therefore the judgment should be reversed. The point is made that the 3d section of the act of 1873 (Starr & Curtis, 1709,) provides for the return of the assessment to the county court, and requires that the proceeding shall he in compliance with article 9 of the act in relation to cities and villages, and that the act of July 16, 1871, (Starr k Curtis, 1695,) gave no authority for or validity to these proceedings. It is substantially conceded, as it must he, that the act of 1871 furnishes a complete method for the assessment and confirmation, in cases falling within its purview. Nor is there necessarily any inconsistency between the 3d section of the act of 1873 and the 3d section of the act of 1871. The one relates to assessments made to improve boulevards and pleasure grounds under control of park commissioners, and the construction of sewers, and requires that plans and specifications therefor shall be first made; the other relates to land taken or purchased by the commissioners for park purposes, and requires an estimate only shall be made of the cost of such land. The 3d section of the act of 1871 provides for a report to and confirmation of the assessment by the circuit court, while the act of 1873 requires the confirmation to be in the county court, as before stated.

The act of 1879, as amended, provides that assessments and taxes thereby authorized shall he enforced and collected as other assessments and taxes are enforced for or on account of such boards and authorities. By the 2d section of the latter act, as amended in 1887, the sum of money raised by the tax or assessment is limited not to exceed the estimated first cost of the improvement ordered, and it is expressly provided that it shall not be used for any subsequent care, maintenance or repair thereof, thereby requiring an estimate of the cost of the proposed improvement, and confining the amount to be raised to the estimated cost of converting the street into a boulevard in the first instance, leaving, as it would seem, subsequent improvements to be made under the act of 1873. It is apparent that resort must here be had to the circuit court, under the one act, and to the county court, under the other, for confirmation of the assessment. No reason is perceived why the acts in question may not subsist together, each governing in appropriate eases. We have repeatedly held the act of 1871 to be in force, and sustained assessments made thereunder, although the question here arising, perhaps was not involved. People v. Brislin, 80 Ill. 423 ; Dunham v. People,. 96 id. 331.

Under.the act of 1879, authorizing the taking of streets by the park commissioners, it does not seem to be contemplated that plans and specifications of the work shall be adopted, which would appear to be a prerequisite under the act of 1873. Like the provision in respect of assessments to pay for land purchased or taken, there is to be an estimate of the cost of the improvement ordered. We can not perceive why the proceedings in cases of this sort do not most appropriately fall within the act of 1871, if, indeed, it can be prosecuted at all under the act of 1873. We are of opinion that the application was properly made to the circuit court, and if the county court had jurisdiction, it, at most, was concurrent only.

The remaining question which we shall notice relates to the jurisdiction of the park commissioners over the portions of Twelfth street and Ogden avenue sought to be taken as a boulevard connecting Douglas Park with the city of Chicago.

The 1st section of the act of 1879, as amended by the act of the 27th of June, 1885, is as follows:

“Sec. 1. That every board of park commissioners shall have power to connect any public park, boulevard or driveway under its control, with any part of any incorporated city, town or village, by selecting and taking any connecting street or streets, or part thereof, leading to such park; and shall also have power to accept and add to any such park, any street or part thereof which adjoins and runs parallel with any boundary line of the same: Provided, that the streets so selected and taken, so far as taken, shall lie within the district or territory the property of which shall be taxable for the maintenance of such parks: And provided further, that the consent of the corporate authorities having control of any such street or streets, so far as selected and taken, and also the consent, in writing, of the owners of a majority of the frontage of the lots and lands abutting on such street or streets, so far as taken, shall be first obtained. ”

The restrictions upon the right of the board of park commissioners to select and take the street or streets connecting the park with the city, although put in the form of a proviso, are clearly a limitation on the power of the board, and clearly negative all authority to take the street or streets unless the conditions prescribed are met and complied with. These conditions are: First, the streets so selected and taken, so far as taken, shall lie within the district or territory the property of which shall be taxable for the maintenance of such parks; second, the consent of the corporate authorities having control of any such street or streets, so far as selected and taken, shall be first obtained; third, the consent, in writing, of the owners of a majority of the frontage of the lots and lands abutting on such street or streets shall be first obtained. And after these requirements have been complied with, and not until then, and the park commissioners have selected the streets, the “selecting and taking,” within the meaning of the law, is complete. Comrs. of Kensington v. Keith, 2 Barr, 218; Voor-hees v. Bank of the United States, 10 Pet. 193; Holland v. Baltimore, 11 Md. 186.

This is conceded by counsel for appellees to be the correct construction of the statute, but it is claimed that full compliance has been shown. No question arises in respect of the two conditions first mentioned, but it is insisted that the consent of the owners of a majority of the lots and lands abutting was not shown to have been obtained. The objections filed by appellants fully cover all the questions discussed. The controversy here relates to the third condition,—the consent of the owners of a majority of the abutting frontage. Such consent of the owners of more than one-half of the frontage upon the portions of the streets proposed to be converted into a boulevard connecting the park with the city, lay at the foundation of the right of the park commissioners to assume control of the streets. The existence of the fact was necessary to the.jurisdiction of the park commissioners,' and the burthen was upon them to establish, prima-facie at least, the jurisdictional facts authorizing them to take these streets for the pur.pose of constructing a boulevard appurtenant to the park, and connecting the same with the city.

On the hearing of the application for confirmation of the assessment roll, returned by the commissioners, to show such consent in writing, the commissioners produced a paper purporting to be' a petition to the board by, and the consent of, abutting property owners for the taking of the portions of said streets as a boulevard connecting the city and park. It was shown that such paper came from the files kept by the board of commissioners, and was the written consent acted upon by the board in taking said streets, or parts of streets, for the purpose contemplated. They then called a witness, who testified that he drew up the paper produced, circulated it, and procured most, but not all, the signatures thereto; that he was unable to distinguish those he had not procured, etc. It appearing also, on the face of said paper, that some of the names thereto, purporting to be the names of the owners of property abutting on said parts of streets claimed to have been taken by the commissioners, had been signed by an agent, or by some other person, for or on behalf of the owner, the commissioners offered evidence intended, as it would seem, to explain the same, and show, as we presume, the authority of such agent or other person to sign the same. Upon objection to the competency of this offered evidence, the court held that it was unnecessary, in the first instance,—that the production and putting in evidence, the petition and consent paper made a prima facie case for the commissioners, and cast the burthen upon the objectors to show that it was not the written consent of property owners, as it purported to be. Said paper was then, over the objection of appellants, read in evidence. It had been shown, that the frontage on Twelfth street, from Ashland avenue to Ogden avenue, and on Ogden avenue, from Twelfth street to Douglas Park, being the entire frontage sought to be charged with the expense of the proposed improvement, was 14,775 feet, a majority of which is 7388 feet; and that if the boulevard was continued westerly, through the park, to the east line of Albany avenue, the distance would be increased 2150 feet, making an additional frontage by the park of 4300 feet. By simple computation, the paper read in evidence showed, that of the frontage on Twelfth street and Ogden avenue, there had been consent signed to 7536 feet, or 148J feet more than one-half thereof.

We can not concur in the holding of the trial court. As we have seen, the burthen was upon the park commissioners to show, affirmatively, the jurisdictional fact of consent by the owners of the required amount of frontage. The evidence in respect thereof was, we think, wholly insufficient. Waiving the matter of proving ownership by the persons purporting to sign the paper admitted in evidence, it is not showm that a sufficient number of such persons signed the consent to constitute consent by the owners of a majority of the abutting property. The only person introduced who testified generally to the execution of the writing, testifies that he procured the signatures of most of the signers, but not all, and he does not testify, except in a few instances, either as to those he did or did not procure. There are many signatures to the writing purporting to be the consent of owners of abutting property, either of whom purport to sign for a sufficient number of feet frontage to reduce the amount to less than the required number of feet. We can not tell from the evidence contained in this record whether these persons executed this instrument or not. The writing here offered is not signed by the objectors, and we are aware of no rule by which it was admissible in evidence against them, without proof of its execution.

But if it could be conceded that the evidence was sufficient to show the signing by the parties purporting to execute the writing, the names of persons purporting to sign as owners, representing over 1300 feet of this frontage, were apparently placed there by some other person. There was no competent evidence tending to show authority of the persons executing) or purporting to execute, the consent for or on behalf of such owners. The execution or signing of the name of the owner by one without authority would not be binding upon the owner, and would not constitute consent, within the meaning of the statute. The burthen was upon the commissioners to show-consent of the required number of owners, and to do this, in this case, it was necessary to show that authority to execute the consent was given by the owner on whose behalf it purported to be executed. Henderson v. Mayor of Baltimore, 8 Md. 352.

Nor is the consent at all aided by the fact that the park commissioners acted upon the paper introduced in evidence, or by the consent of the city of Chicago that the parts of the streets named might be taken by the commissioners for a boulevard. The action df the city is wholly independent of that of the property owners. And while the park commissioners must, in the first instance, pass upon the fact of consent by the owners of abutting property, and determine for themselves whether those owning a majority of such property have consented to their appropriation of the street for the purposes contemplated by the act, such determination can have no effect when their jurisdiction is challenged in endeavoring to carry out the powers conferred by the statute. The power conferred upon the park board affects and impairs the right of the citizen, and may (and in the case of the minority of holders of abutting property does) incumber his property without his consent, and may arbitrarily impose onerous burdens for which there is no relief or redress. The legislature has interposed the safeguard of requiring the consent of the owners of more than one-half of the property to be affected, upon the presumption, no doubt, that what will be of benefit to the greater portion will not unduly prejudice the lesser part; and when the commissioners sought confirmation of their assessment upon ajqiellants’ property, under the power conferred by the statute, it was incumbent upon them to show compliance with the law, by which alone they obtained jurisdiction to impose the burden. This they have not done. Rex v. Mayor of Liverpool, 4 Burr. 244; Smith v. City of Madison, 7 Ind. 86 ; Clark v. Washington, 12 Wheat. 40, and supra.

We refrain from discussion of the point that there was a material alteration of the writing after it had been signed, without the knowledge or consent of the signers, whereby the boulevard was extended 2150 feet through the park, and the subsequent assent of the park commissioners for the frontage of the park on each side of the street, farther than to remark, that such consent in nowise affects the questions heretofore considered. The estimate of the cost of the improvement proposed was confined by the commissioners, as it appears, to the improvement of Twelfth street from Ashland avenue to Ogden avenue, and of Ogden avenue from Twelfth street to Douglas Park, as consented to, as such consent paper was originally drawn, and was fixed at the sum of $249,718.78, and which sum was assessed upon the abutting property on the parts of said streets, as designated in the assessment roll returned to the circuit court. Upon another hearing the alteration may be so explained as that it shall not affect the validity of the consent.

It follows, that the judgment confirming the assessments against the lands and lots of appellants was erroneously entered, and must be reversed, which is accordingly done, and the cause remanded for further proceedings.

Judgment reversed.