Albertson v. Town of Cicero

• Decision Date: 15 June 1889
• Parties: ALBERTSON et al. v. TOWN OF CICERO.
• Court: Illinois Supreme Court

129 Ill. 226

21 N.E. 815

ALBERTSON et al.

v.TOWN OF CICERO.¹

Supreme Court of Illinois.

June 15, 1889.

Appeal from county court, Cook county; RICHARD PRENDERGAST, Judge.

Application by the town of Cicero for the confirmation of a special assessment for the construction of a sewer. Louis Albertson, Mattie B. S. Houston, Thomas W. Shreve, and Sally Chapin filed objections, which were overruled, and they appeal.

Wilson & Moore, Condee & Rose and John B. Skinner, for appellants.

Whitechead & Pickard, for appellee.

CRAIG, C. J.

Three objections are urged against the special assessment: First. The commissioners appointed by the court to make the assessment were not sworn before an officer authorized to administer oaths. Second. One of the commissioners was ineligible on account of interest, being the owner of lands assessed. Third. A part of the money raised by the assessment was to be expended in another town, contrary to law.

The town of Cicero is incorporated under a special charter which will be found in volume 3, Laws 1869, p. 666. After the town was incorporated it adopted article 9 of the city and village act, (Rev. St. c. 24.) By its charter the town of Cicero was authorized to levy special assessments for improvements, but the present assessment was not made under the charter, but it was made under article 9. Section 138 of the article provides that ‘upon the filing of such petition the court shall appoint three competent persons as commissioners, who shall take and subscribe an oath in substance as follows, (giving the form of the oath.) But no provision of the statute declares what officer shall administer the oath. Here, after the commissioners were appointed, they were sworn before Ed. T. Ansten, town clerk, and it is insisted that he had no authority to administer the oath. Section 112 of article 12 of the township organization law provides that the town clerk may administer oaths and take affidavits in all cases required by law to be administered or taken by town officers, but we find no provision of the statute that empowers a town clerk to administer oaths in other cases. Section 2, c. 101, in relation to oaths, specifies certainofficers who may administer oaths, but a town clerk is not among the number. So far, therefore, as the statute is concerned, the town clerk does not seem to be authorized to administer an oath in a case of this character. But upon an examination of the charter of the town of Cicero it will be found that section 17, in case of proceedings to levy a special amount, provides that the commissioners selected to make the assessment may be sworn before the town clerk, or some other officer authorized to administer oaths. Had the proceedings which were instituted by the town of Cicero been conducted under the charter no question could arise in regard to the power of the town clerk to administer the oath, as it is expressly conferred. Upon the adoption of article 9 the proceedings in a special assessment would have to conform to that article, and that article would control wherever it conflicted with the charter, and, if article 9 had required the oath of the commissioners to be taken before any named officer, the town clerk would have no power to administer the oath. But the charter of the town of Cicero may be regarded in force so far as it does not conflict with article 9 of the statute, and as the charter expressly authorizes the commissioners to be sworn before the town clerk, and as article 9 is silent as to the officer before whom they may be sworn, we are inclined to hold that the town clerk was authorized to administer the oath.

As to the second objection relied upon by appellants, we do not regard the evidence produced...