City of Chicago v. Stein

• Decision Date: 21 December 1911
• Citation: 252 Ill. 409,96 N.E. 886
• Parties: CITY OF CHICAGO v. STEIN.
• Court: Illinois Supreme Court

252 Ill. 409

96 N.E. 886

CITY OF CHICAGO

v.STEIN.

Supreme Court of Illinois.

Dec. 21, 1911.

Appeal from Superior Court, Cook County; Theodore Brentano, Judge.

Action by the City of Chicago against Philip Stein. From a judgment for plaintiff, defendant appeals. Reversed and remanded.Stein, Mayer & Stein, for appellant.

Philip J. McKenna and Edgar R. Hart (William H. Sexton, Corp. Counsel, of counsel), for appellee.

HAND, J.

The city of Chicago sought to have confirmed a special assessment to curb, grade, and pave South Oakley avenue, in the city of Chicago, from West Eighteenth street to Blue Island avenue. The property of the appellant was assessed, and an agreed case was made up under section 103 of the practice act and submitted to the superior court. The assessment was confirmed, and this appeal has followed.

The appellant entered a special appearance, and but one question is raised upon this record, viz., whether the certificate of publication filed by the publisher is sufficient to give the court jurisdiction to confirm the assessment.

The certificate is in the following form:

‘State of Illinois, County of Cook-ss.:

‘This affiant, David E. Town, being first duly sworn, says that the Chicago Evening Post Company, a corporation, is the publisher of the Chicago Evening Post, and that he is the secretary of said corporation and makes this affidavit in its behalf; that a notice, of which the annexed notice is a true copy, has been published five successive days in the Chicago Evening Post, a daily newspaper printed and published in the city of Chicago, in said county, and that the date of the first paper containing the said published notice was the 15th day of December, 1910, and the date of the last paper the 20th day of December, 1910. David E. Town, Secretary Chicago Evening Post Co.

‘Subscribed and sworn to before me this 21st day of December, A. D. 1910. Timothy Sullivan, Notary Public.’

[1] The main reason urged as ground of reversal in this court is that David E. Town, the secretary of the Chicago Evening Post Company, was not authorized to make the certificate, and that therefore there was no proof of publication.

The local improvement act contains no provision for proving the publication of the notice required by section 44 of that act (Hurd's Stat. 1909, c. 24, § 550); hence the proof must be made, according to section 1 of chapter 100 of Hurd's Statutes, by ‘the certificate of the publisher * * * or his authorized agent.’ There was no proof that Town, as secretary, had been authorized by the board of directors of the Chicago Evening Post Company to make said certificate, or such certificates in general, or that the Chicago Evening Post Company had knowingly theretofore permitted Town, as secretary, to make such certificatesat all, or to such an extent that his authority to make such certificates could be inferred. The question is therefore narrowed to whether Town, by reason of the fact alone that he was secretary of the corporation, can properly be held, as a matter of law, to have authority to make such certificate.

[2] In statutory proceedings like those provided in the local improvement act, where the property of the citizen may be taken upon notice by publication, and without personal notice to the property owner, no presumption can be indulged in support of the jurisdiction of the court in which the proceedings are carried on, but the proceedings must be in strict conformity to the statute; and this must be made to appear upon the face of the record of the proceedings. City of Chicago v. Wright, 32 Ill. 192;McChesney v. People, 148 Ill. 221, 35 N. E. 739;Payson v. People, 175 Ill. 267, 51 N. E. 588;Sumner v. Village of Milford, 214 Ill. 388, 393, 73 N. E. 742, 743. In the Sumner Case it was said: ‘Jurisdiction of a particular case must be acquired in the manner prescribed by the law. Where the mode of acquiring jurisdiction is prescribed by the statute, compliance therewith is essential, or the proceedings will be a nullity.’ If, therefore, the certificate of publication was not made by the publisher or its authorized agent, the certificate was not a valid certificate, and the court was without jurisdiction to confirm the assessment.

[3] David E. Town was an officer of the corporation, but was he its authorized agent for the purpose of making such certificate? We think not. In Cook on Corporations, vol. 3 (6th Ed.) § 717, it is said: ‘The secretary is one of the corporate officers, but he has practically no authority.’ And in a footnote the same author says: ‘A secretary is a mere servant. His position is that he is to do what he is told, and no person can assume that he has any authority to represent anything at all.’ In Cobb v. Glenn, 57 W. Va. 49, 49 S. E. 1005,110 Am. St. Rep. 734, where it was held that the secretary of a corporation has no inherent power to sell real estate, the court quotes the following from Thompson on Corporations (section 4697): ‘The law does not ordinarily imply in the secretary of a business corporation the power ex officio to bind the company by means of letters or documents signed officially’-and this statement seems to be well supported by authority. In Taylor v. Sutherlin-Meade Tobacco Co., 107 Va. 787, 792, 60 S. E. 132, 134, which was an attachment sued out by the tobacco company, a motion was made to quash the...