Andrews v. People Ex Rel. Julian S. Rumsey.

• Decision Date: 30 September 1876
• Citation: 1876 WL 10423,84 Ill. 28
• Parties: MARTIN ANDREWS et al.v.THE PEOPLE ex rel. Julian S. Rumsey.
• Court: Illinois Supreme Court

84 Ill. 28

1876 WL 10423 (Ill.)

MARTIN ANDREWS et al.

v.THE PEOPLE ex rel. Julian S. Rumsey.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. MCDAID & WILSON, for the appellants.

Messrs. HOLDEN & MOORE, and Mr. JOHN M. ROUNTREE, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

The first position taken by appellants is, that the cost of the parks and boulevards, for which this assessment is levied, exceeds the limitation fixed by the statute.

+-----------------------------------------------------------------------------+
                ¦The record shows that the assessment was made to pay damages for ¦$174,560 60¦
                ¦lands condemned                                                  ¦           ¦
                +-----------------------------------------------------------------+-----------¦
                ¦And to pay for lands purchased                                   ¦873,446 62 ¦
                +-----------------------------------------------------------------+-----------¦
                ¦Making a total of                                                ¦$1,048,007 ¦
                ¦                                                                 ¦22         ¦
                +-----------------------------------------------------------------------------+
                

The limitation imposed by the 5th section of the original act was $900,000, exclusive of improvements (Private Laws of 1859, vol. 1, 345); but in a supplemental act, approved April 19, 1869, the 10th section declares: “For the purchase of the middle park mentioned in said act (the original act), in addition to the sum of $250,000 limited in said act for its cost, the further sum of $150,000 may be expended, which shall be added to the sum of $900,000 in said act specified for the entire cost of said parks and boulevards.” Vol. 1, Private Laws of 1869, page 357.

Under the provisions, therefore, of the original act as amended by the supplemental act, the limit for the cost of the parks and boulevards imposed by the legislature, exclusive of improvements, was $1,050,000, so that the cost of the parks and boulevards does not appear to exceed the limit prescribed; but it is said the cost of the park exceeds the limit prescribed, as the item of $174,560.60 only represents the net damages, the benefits to the various tracts having been deducted, when the total damages, regardless of benefits, should be considered in estimating the actual cost of the park. We do not think the language used in the act will warrant the construction contended for. The board has the power to condemn, and offset damages by benefits, and when this occurs, the actual cost of the park is the amount that has to be paid after deducting the benefits.

The last clause of section 2 of the supplemental act declares: “In case only a part of any lot or piece of ground is condemned for such improvement, and the balance is benefited by such improvement, the damages and benefits shall be assessed in separate sums, and if the one be greater than the other, a balance shall be struck, and the difference carried forward to another column, and the difference, only, shall be collectible or payable;” and section 13 of the original act does not provide that the damages shall be paid, but the sum due the respective parties shall be paid.

In ascertaining the cost of the park, we see nothing in the language of the act from which the conclusion could be drawn that anything should be considered except what is required to be actually paid. But it is urged that the limitation of $900,000 could not be enlarged without the consent of the tax-payer at the polls. The logical effect of the position is, that the original act is so sacred that it was beyond the power of the legislature, and could not be amended without the consent of the town of West Chicago.

It is true, the powers created by the original act were put in motion by a vote of the people of the locality, yet that fact, of itself, affords no argument to sustain the position that any amendment the legislature thought necessary should also receive the sanction of a vote before it should be enforced.

The Township Organization Law, before it can be in force in a county, must be adopted by a vote of the people at the polls, and yet the power of the legislature to make such amendments as seem for the best, without submitting them to a vote, has never been questioned or denied.

So, too, the act to provide for the incorporation of cities and villages, to become the charter of a city or incorporated town, has to be adopted by a vote of the incorporation, but when adopted it may be amended as the legislature may think best, and the amendment will become the law without any ratification by the municipality.

This park act, by the last section, is declared to be a public law, and we entertain no doubt in regard to the power of the legislature to amend without the amendment being ratified by a vote. This is not, however, a new question in this court. In The People v. Brislin, 80 Ill. 423, it was held that amendments enlarging or restricting chartered rights, acquired under an act submitted to a vote of the people, need not be submitted to such vote. This decision is conclusive of the question raised.

It is also urged by appellants that the assessment is void, because levied upon lands in West Chicago to pay for an improvement, in part, in the town of Jefferson, and in support of this position we are referred to the case of Hundley v. The Commissioners of Lincoln Park, 67 Ill. 559.

There is a marked difference between the case cited and the one under consideration. In the former case, the assessment was made by the supervisor and assessor, the corporate authorities of two towns, North Chicago and Lake View, under the act of June 16, 1871. Laws of 1871-2, p. 587. The supervisors and assessors of the two towns met together, and, as one body, made the assessment on the property in North Chicago and Lake View. This action was held to be illegal, on the ground that the corporate authorities of one town had no jurisdiction to make or participate in the assessment of property in the other town. It was also held that an assessment on property in one town for a local improvement in an adjoining town is not within the meaning of section 9, article 9, of the constitution of 1870, which provides that the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements.

The assessment in this case was made by three assessors, appointed by the circuit court on the 19th day of May, 1870, under the provisions of the original and supplemental park acts, enacted in 1869. It does not appear, from the record, that any portion of the money to be raised in West Chicago is to be expended for a local improvement in another town.

The appellants base their position on the fact that the assessment includes the sum of $17,795.70 as the cost of the Jefferson boulevard, and the evidence of Charles Loding, who says, “that there is...