Conway v. City of Chicago

• Decision Date: 15 December 1908
• Citation: 86 N.E. 619,237 Ill. 128
• Parties: CONWAY v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

237 Ill. 128

86 N.E. 619

CONWAY

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Dec. 15, 1908.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; George A. Carpenter, Judge.

Action by Richard F. Conway against the City of Chicago. From a judgment of the Appellate Court (138 Ill. App. 320) reversing a judgment for plaintiff, defendant appeals. Reversed.George A. Mason and Lyman, Lyman & O'Conner (Edward J. Brundage, Corp. Counsel, of counsel), for appellant.

Tolman, Redfield & Sexton, for appellee.

This is an action of assumpsit brought by Richard F. Conway against the city of Chicago to recover the balance due on special assessment bonds issued in payment of the cost of paving certain streets in Chicago, known as the ‘St. Lawrence avenue system.’ The declaration consisted only of the common counts, to which the city of Chicago pleaded the general issue. By agreement a jury was waived and the cause submitted to the circuit court upon a stipulation of facts. The circuit court found in favor of the plaintiff and assessed the damages at $20,176.17. From a judgment for this amount against it the city of Chicago prosecuted an appeal to the Appellate Court for the First District. The Appellate Court reversed the judgment of the circuit court, and entered a judgment against the city for $18,475. From this judgment, the city of Chicago has prosecuted a further appeal to this court.

The Appellate Court disagreed with the trial court as to the amount appellee was entitled to recover, and made an order requiring a remittitur to be entered, whereupon appellant made a motion, which was assented to by appellee, that the Appellate Court set sside its first order and enter final judgment for the amount of $18,475. This course was adopted in order to facilitate an appeal to this court, and it was stipulated that it was to be without prejudice to the rights of the parties to assign errors in this court.

The facts necessary to an understanding of the questions that are open for consideration in this court, as the same appear from the stipulation of the parties, are as follows:

On June 16, 1896, the city council of Chicago passed an ordinance for the paving of a system of streets, known as the ‘St. Lawrence avenue system,’ to be paid for by special assessment. A special assessment was confirmed by the county court of Cook county, except as to the property objected for, on the basis of the estimated cost of said improvement, in the sum of $148,000, and on July 26, 1896, an assessment of $115,924.57 was duly certified for collection. Appellee became the contractor, and in due time constructed the improvement in accordance with the ordinance, contract, and specifications and to the satisfaction of the city authorities. Under appellee's contract he was entitled to receive $104,162.65, payable out of the proceeds of special assessments to be levied to defray the cost of the improvement. The city proceeded to collect the assessment and has collected $136,545.53, of which $32,382.88 was the interest and has made sundry payments to appellee on account of his contract, still leaving a balance due, on account of principal, of $2,865. The city has on hand a balance of $979.97 of the assessment, which it is admitted ought to be applied on appellee's claim. The stipulation further shows that on December 31, 1896, out of the money which the city collected from the property owners on said special assessment, as aforesaid, the city, by its then officers in charge of the administration of special assessments, transferred from said special assessment fund, ‘Warrant 22,344,’ the sum of $4,353.77, which the city claimed for the cost of engineering and superintendence and the cost of making and collecting said assessment, to another fund known as ‘Fund W.’ The actual cost of inspection of said improvement, $2,453.50, was also transferred to ‘Fund W,’ making an aggregate of $6,807.27 so transferred. Said sum of $6,807.27 together with 6 per cent. of the estimated cost of all other improvements made by special assessments during the year 1896, and several years prior and subsequent to said year, were merged into ‘Fund W’ and together constituted a single fund, from which were paid the pay rolls of the special assessment department of the city of Chicago, including the pay roll of all inspectors and engineers, as well as the accountants, administrative officers, and all other employés of said department, including the expenses of making and collecting the assessments. No account was kept of the expense of making or collecting any particular special assessment, nor of the actual cost of the engineering and superintendence of any particular special assessment. It cannot now be ascertained what was the expense of the city of Chicago of the engineering and superintendence, making and collecting the special assessment above referred to, nor of any other particular special assessment. The amounts thus transferred in the aggregate to ‘Fund W’ were more than the total cost of administration of the special assessment department, and the balance of the said ‘Fund W’ was again transferred to the general fund of the city of Chicago and used for general corporate purposes.

It is also stipulated that on December 31, 1896, the city, by its then officers, also transferred from said special assessment fund the sum of $3,072.82 and credited the same to the account for the sewer department, and used said sum of money, together with other similar sums transferred from other special assessment funds, in the payment of the expenses of said sewer department, without keeping any account of the particular amounts expended by the said sewer department on the separate and particular special assessment improvements. The work done by the sewer department consisted in constructing catch-basins and connecting the same with the openings in the gutters of the streets so improved and with the sewers in said streets underneath said pavements, so as to provide for taking care of the surface waters on said streets, but the special assessment ordinance in the case in question contained no provision for the construction or adjustment of sewers and catch-basins and did not describe and refer to the same as a portion of said improvement.

The stipulation further shows that during the year 1897 appellant voluntarily made abatements to property owners assessed for the improvement under the following circumstances: ‘After the special assessment had been confirmed by the order and judgment of the county court of Cook county, and the amount of the benefits and of the proportionate cost of the improvement to each particular lot fronting upon the said improvement had been ascertained and confirmed by the court, the city of Chicago, by its then officers, undertook to ascertain the actual expense of constructiong the pavement in front of each particular lot, and where it appeared that, by reason of the physical condition of the property, a less amount of filling and grading was necessary for one lot than for another, or for any reason the cost of improvement in front of a particular lot was less than the amount assessed against it, the city of Chicago issued an abatement certificate to such property owner for the amount so ascertained and delivered the same to the county treasurer, to which officer the said assessment had then been certified for collection according to law, and directed him not to collect said amount from said property owner, but to credit the account of said property owner with the amount of said certificate mentioned as ‘paid by the city of Chicago,’ and directed him, after thus crediting said abatement certificates and collecting the balance, to turn in said certificates to the city on final accounting of the collection as so much money collected. This was done after the contract for said improvement had been awarded and signed and while the improvement aforesaid was in process of construction, and without any order of court or any judicial proceeding to determine whether the amount previously adjudicated by the court as the amount of benefits and the proportionate cost of the improvement for each particular lot was excessive, and without any proceeding to charge to the other lot owners an equivalent amount. This action of the city was taken in good faith and without any fraud on the part of its...