Culver v. People ex rel. Kochersperger

• Citation: 43 N.E. 812,161 Ill. 89
• Parties: CULVER v. PEOPLE ex rel. KOCHERSPERGER.
• Decision Date: 28 March 1896
• Court: Supreme Court of Illinois

161 Ill. 89

43 N.E. 812

CULVER

v.PEOPLE ex rel. KOCHERSPERGER.

Supreme Court of Illinois.

March 28, 1896.

Appeal from Cook county court; Charles H. Donnelly, Judge.

Application, on the relation of D. H. Kochersperger, for judgment on a special assessment. From a judgment for relator, Helen Culver appeals. Reversed.W. W. Grinstead, for appellant.

H. S. Mecartney, for appellee.

This is an appeal from a judgment of the county court of Cook county for the sale of certain lots of appellant for the first and second installments of a special assessment levied by the town of West Chicago, at the request of the board of West Chicago park commissioners, for the improvement of Douglas Boulevard. In the original proceeding for the confirmation of the assessment, the appellant did not appear, and default was taken against her. In the present application by the county collector for judgment and order of sale, the appellant filed certain objections, all of which were overruled by the county court, and judgment was entered against the land of appellant. The present appeal is prosecuted from such judgment of the county court. The bill of exceptions shows that in support of her objections the appellant, upon the trial below, introduced all the proceedings in the original assessment proceeding, including the ordinance, the petition, and the judgment of confirmation. The ordinance was passed and the petition filed under the act of May 2, 1873, in regard to parks and boulevards. 2 Starr & C. Ann. St. p. 1708. Section 3 of that act provides that: ‘In case such board of park commissioners shall desire to improve any boulevard or pleasure-way under their control, or any part thereof * * * they shall make plans and specifications for such contemplated improvement * * * and shall prepare estimates of the cost of such contemplated improvement and transmit such plans, specifications and estimates to the corporate authorities of the town where such improvement will be situated. Such corporate authorities may upon the receipt of such plans, specifications and estimates * * * determine by ordinance to be entered upon the records of such town whether such improvement shall be made or not; if they shall determine to make the same, they shall also prescribe that the same shall be made by special assessment or special taxation of contiguous property; * * * if such ordinance shall provide that such improvement shall be wholly or in part made by special assessments, they shall direct the supervisor of such town to file a petition in the name of the town, in the county court, of his county, for proceedings to assess, the cost of such improvements; such petition shall recite the ordinance for the proposed improvement and the plans, specifications and estimates of the cost thereof, and pray that the cost thereof may be assessed in the manner prescribed by law. The proceedings to levy and collect such assessment subsequent to the filing of such petition, shall, in all things as near as may be, conform to the provisions of article 9 of an act to provide for the incorporation of cities and villages, approved April 10th, 1872, and all of the provisions of said article 9, so far as applicable, shall be in force and apply to any assessment made under this act.’ The fourth section of said act provides that the town supervisor, clerk, and assessor of such town shall be the corporate authorities of such town. On March 28, 1893, the corporate authorities of the town of West Chicago passed an ordinance, of which section 1 provides ‘that the improvement of 60 feet on the outside and on each side of Douglas Boulevard or Douglas Park Boulevard as desired to be made by West Chicago park commissioners andas shown by the plans, specifications and estimates transmitted by said West Chicago park commissioners to the corporate authorities of the town of West Chicago, shall be made, and that the cost thereof, together with cost of making and collecting the assessment to be made therefor, shall be paid by special assessment upon contiguous property abutting on said boulevard so as to be improved in the manner provided by law and in accordance with such plans, specifications and estimates.’ Section 2 of said ordinance is set forth in the opinion of the court. On April 7, 1893, the town of West Chicago filed its petition in said county court, to which was attached a certified copy of said ordinance, and also copies of the plans, specifications, and estimates presented to the corporate authorities of said town. Said petition prayed that commissioners be appointed to assess the cost of such improvement, and to make and levy a special assessment therefor, and to return an ssessment roll, in the manner provided by law, and that said special assessment might be divided into installments, the first of which should be 20 per cent. of the total of said assessment, which installment should be due and payable on and after the date of confirmation of said assessment, and that the remainder should be divided into four equal installments, payable annually thereafter, and that each of said four installments should bear interest at the rate of 6 per cent. per annum from the 1t day of October, 1893, as provided by law. On July 8, 1893, final judgment or order of confirmation was entered in said proceeding, which, among other things, found that in and by said ordinance it was provided that the said special tax should be collected by installments, the first of which should be 20 per cent., as aforesaid, and ordered that said special tax should be divided and payable by installments, the first of which should be 20 per cent. of the total amount of said special tax, and that the remaining portion thereof, after deducting said first installment, should be divided into four equal installments, payable annually thereafter, and collected in the same manner that other assessments are now collected; that each of said last-mentioned four installments should bear interest at the rate of 6 per cent. per annum, etc. By an act approved April 29, 1887, article 9 of the city and village act was amended by adding thereto sections from 55 to 68, inclusive. Laws Ill. 1887, p. 104. Said sections 55 and 63 were further amended by an act approved June 15, 1891 (Laws Ill. 1891, p. 81). In both the acts of 1887 and 1891, section 55 provides as follows: ‘That the amount of any special assessment for any local improvement in any city, incorporated town or village may be divided into installments when so provided by ordinance providing for the said improvement, the first of which shall not exceed the sum of twenty-five per cent. of the total of such assessment and which shall be due and payable from and after confirmation of said assessment. The remaining portion of said assessment. The remaining portion of said assessment after deducting the said first installment shall be divided into four equal annual installments which said installments shall be paid annually thereafter and collected in the same manner that other assessments are now collected,’ etc.

MAGRUDER, J. (after stating the facts).

Upon this application to the county court for judgment upon the delinquent list, one of the objections made by appellant was that the ordinance lying at the foundation of the orginal assessment proceeding was illegal, invalid, and void, for several reasons. One of these reasons was that the ordinance provided that the special assessment should be divided into installments. It was also objected that the judgment of confirmation of the assessment was not in conformity with the law, and was invalid.

The rule that the judgment of a court acting without jurisdiction is void, and may be successfully resisted even in a collateral proceeding, applies to a judgment confirming a special assessment, when application is made for the sale of the lands upon which the special assessment has been livied, for nonpayment of such judgment of confirmation. If, upon an application for the confirmation of a special assessment, the court has jurisdiction to render the judgment of confirmation, such judgment will conclude the landowner from questioning any of the proceedings had prior thereto, on a subsequent application for a judgment and order for sale of the premises. ‘On the other hand, if the proceedings anterior to the judgment confirming the assessment were so defective as not to authorize the court to act at all upon the question of confirmation, then it is equally clear the objections in question might properly be made upon an application for judgment, and order of sale of the lots, as well as at any other time.’ Schertz v. People, 105 Ill. 27;Kilmer v. People, 106 Ill. 529;Goodwillie v. City of Lake View, 137 Ill. 51, 27 N. E. 15;Ayer v. City of Chicago, 149 Ill. 262, 37 N. E. 57;Dickey v. City of Chicago, 152 Ill. 468, 38 N. E. 932. The question then arises, whether the judgment of confirmation entered in the original assessment proceeding was a valid judgment. The judgment of confirmation, upon its face, orders that the special assessment, or, as it is therein called, the ‘special tax,’ be payable in installments. The petition filed in the county court for the appointment of commissioners to assess the cost of the improvement prays that the assessment be divided into installments,-the first 20 per cent. payable on confirmation of the assessment; the remainder, in four equal installments, payable annually thereafter. The ordinance passed by the town of West Chicago on March 28, 1893, for the improvement of Douglas Park Boulevard as desired to be made by the West Chicago park commissioners, and as shown by the plans, specifications, and estimates transmitted by said West Chicago park commissioners to the corporate authorities of the town of West Chicago, a certified copy of which ordinance was attached to said petition, provides, in the second section thereof, ‘that said special assessment shall be divided into...