Com'rs v. City of Chicago

Citation38 N.E. 697,152 Ill. 392
PartiesWEST CHICAGO PARK COM'RS v. CITY OF CHICAGO.
Decision Date29 October 1894
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Cook county court; Frank Scales, Judge.

Petition by the city of Chicago against the West Chicago Park Commissioners for confirmation of a special assessment. There was a judgment of confirmation. Defendants appeal. Reversed.

J. M. Hamilton, for appellants.

Adolph Kraus and Harry Rubens, for appellee.

BAILEY, J.

This is an appeal by the West Chicago Park Commissioners from a judgment of the county court of Cook county confirming a special assessment upon the lands embraced in Douglas Park, one of the parks under the control of the appellants, to pay the cost of a street improvement; the improvement consisting of the erection of 19 boulevard lamps on California avenue, between Twelfth street and Ogden avenue. The amount of the assessment in question is $128.50, and it was stipulated by the parties in the court below that, if the assessment should be held to be valid in law, that should be deemed the correct amount of benefits to be assessed upon the park property for the improvement; but it was further recited in the stipulation that the case was selected out of a large number of similar cases pending for special assessments made by the city of Chicago upon the West Chicago parks, involving in all considerable amounts, for the purpose of getting a decision on the law question involved. In this court it is admitted that the case is brought here as a test case for the purpose of settling the question of the power of the city of Chicago the assess the lands embraced in the parks and boulevards under the control of the appellants for the improvement of streets adjacent thereto or abutting thereon. The appellants appeared before the county court and interposed a large number of objections to the confirmation of the assessment, all of which were overruled; and all the questions of law which we shall find it necessary to discuss were thereby properly raised.

The West Chicago Park Commissioners hold their office and exist as a municipal corporation under the provisions of an act of the general assembly entitled, ‘An act to amend the charter of the city of Chicago, to create a board of park commissioners, and authorize a tax in the town of West Chicago, and for other purposes,’ approved and in force February 27, 1869, and of various other subsequent acts supplemental thereto or amendatory thereof. The act, after amending the charter of the city of Chicago by providing for an enlargement of its boundaries by adding thereto a considerable amount of adjacent territory, including that which was afterwards embraced in the West Chicago parks, provided, among other things, that seven persons, resident freeholders and qualified voters of the town of West Chicago, who should be designated by the governor, should be, and they were thereby constituted, a board of public park commissioners for that town, to be known under the name of the ‘West Chicago Park Commissioners,’ their term of office to be seven years; and they were required to qualify by taking an official oath, and by giving an official bond, and to organize as a board by electing one of their number president, and by appointing a secretary and treasurer, and by adopting a common seal. And it was provided that: ‘The said board of commissioners shall be a body politic and corporate, with perpetual succession, and power to sue and be sued, plead and be impleaded, to have and use a common seal, and they shall have and enjoy all the powers necessary for the purposes of this act.’ Section 4 of the act was as follows: ‘The said board of commissioners shall have full and exclusive power to govern, manage and direct all parks, boulevards and ways authorized by this act, and by them purchased, made, laid out, or established; to pass ordinances, and issue and enforce orders for the regulation and government of the same; to levy special assessments on all property by them deemed benefited by the purchase, opening and improvement of such parks, boulevards and ways, as limited by this act; to appoint such engineers, surveyors, clerks, and other officers, including a police force, as may be necessary; to define and prescribe their respective duties and authority, and fix the amount of their compensation; and, generally, in regard to such parks, boulevards, and ways, they shall possess all the power and authority now by law conferred upon or possessed by the common council of the city of Chicago in respect to the public squares, places and streets of the city; and it shall be lawful for them to commence the improvement of the same as soon as the funds requisite therefor, or any portion thereof, shall have been obtained. The expenditure for engineers, clerks, and officers, except the president, including the police force, shall not exceed $5,000 per annum, without further authority from the general assembly, but said board may accept of the services of such of the police force of the city of Chicago as may be placed at their disposal by the common council or police authorities of said city.’ By section 5 it was provided as follows: ‘The said board shall have power, and it is made their duty, and they are hereby authorized to select and take possession of, and to acquire by condemnation, contract, donation or otherwise, title forever, in trust for the inhabitants of the town of West Chicago, and of the West division of Chicago, and for such parties or persons as may succeed to the rights of said inhabitants and for the public, as public promenade and pleasure grounds and ways, but not without the consent of a majority, by frontage, of the owners of the property fronting the same, for any other use or purpose, and without the power to sell, alienate, mortgage or encumber the same,’ the lands required for a certain boulevard, and for three parks on the line of the same. ‘Said lands, boulevards and parks, and the personal property of said board, shall be exempt from taxation.’ The act further conferred upon the park commissioners authority to establish building lines for all property fronting on their parks and boulevards; to control subdivisions of property within 400 feet thereof; to condemn lands for parks and boulevards, and to levy and collect special assessments upon property deemed to be benefited by the establishment and improvement of the parks and boulevards, and, with the consent of the town of West Chicago, to levy and collect a tax upon the property of the town for park and boulevard purposes; to close up public streets passing through the park property; and to borrow money, not exceeding $50,000, to pay any deficiencies and necessary outlays arising or required in obtaining the necessary lands and in making the necessary improvements thereon, and to issue therefor the notes or obligations of the corporation; and it was provided that for the payment of such notes and obligations the town of West Chicago and the boulevard and park tax above mentioned should be irrevocably pledged. Provision was also made for the submission of the act, before it should take effect, to a vote of the legal voters of the town of West Chicago, and also of the legal voters of the territory thereby annexed to the city of Chicago and to the town of West Chicago, the adoption of the act to be taken to be a consent on the part of the town to the imposition of the boulevard and park tax. 1 Priv. Laws 1869, p. 342.

By a supplemental and amendatory act approved April 19, 1869, it was provided, among other things, that the title to property condemned, when paid for, should vest in the corporation, for the purposes specified in the act; and power was given to the commissioners to borrow such sum of money, in addition to the $50,000 above mentioned, as should be necessary to pay such proportion of the cost of the property condemned as should be deemed a public benefit, and which ought therefore to be paid by the public, and to pledge the cash resources of the board and the credit of the town of West Chicago therefor. 1 Priv. Laws 1869, p. 354. By an act approved June 16, 1871 (Laws 1871, p. 593), and substantially re-enacted by an act approved May 2, 1873 (Laws 1873, p. 129), it is provided that any town within the limits of any city in which a board of park commissioners exists, having authority by law to acquire land, in trust for the inhabitants of the town, etc., as such public promenade, pleasure grounds or ways, but not for any other purpose, and without power to sell, alien, mortgage, or incumber the same, shall have power to levy and collect a tax, not exceeding 3 mills on the dollar of the taxable property of the town, and not exceeding $100,000 annually, ‘to be used and expended by such park commissioners in governing, maintaining and improving such parks and boulevards or pleasure ways, and paying such necessary expenses incurred in and about the management of such parks and boulevards.’ And it further provided that ‘such board of park commissioners shall annually, or on or before the first day of August in each year, transmit to the corporate authorities of such town, and estimate in writing, of the rate of percentage of tax necessary to raise money sufficient to pay the cost of governing, maintaining and improving such parks and boulevards, and the other necessary and incidental expenses to be incurred in and about the management of such parks and boulevards, during the next succeeding year,’ and that, if the corporate authorities decide to levy the tax, they shall certify the same to the county clerk, etc., the tax, when collected, to be paid over to the board of park commissioners. By an act approved May 31, 1879 (Laws 1879, p. 213), it is provided that the tax to be annually collected shall not exceed 2 1/2 mills on the dollar, and the same provision as to the purposes for which the tax shall be expended expressed in the acts of 1871 and 1873 are...

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