City of Chicago v. Thomasson

• Decision Date: 08 October 1913
• Citation: 259 Ill. 322,102 N.E. 748
• Parties: CITY OF CHICAGO v. THOMASSON et al.
• Court: Illinois Supreme Court

259 Ill. 322

102 N.E. 748

CITY OF CHICAGO

v.THOMASSON et al.

Supreme Court of Illinois.

June 18, 1913.

Rehearing Denied Oct. 8, 1913.

Appeal from Appellate Court, First District; on Appeal from Circuit Court, Cook County; Merritt W. Pinckney, Judge.

Harry S. Mecartney, by leave, filed a petition in the condemnation proceedings by the City ofChicago against Nina Thomasson and others. From a judgment of the Appellate Court affirming a judgment dismissing his petition, he appeals. Affirmed.

See, also, 150 Ill. App. 275.

Richard W. Clifford and Enoch J. Price, both of Chicago, for appellant.

Philip J. McKenna and Howard F. Bishop, both of Chicago (William H. Sexton, Corp. Counsel, of Chicago, of counsel), for appellee.

COOKE, C. J.

On August 29, 1893, the city of Chicago, pursuant to an ordinance providing for the opening and widening of South Park avenue between Fifty-Fifth and Fifty-Sixth streets, filed its petition in the circuit court of Cook county, under article 9 of the Cities and Villages Act of 1872 (Laws 1871-72, p. 247), for the condemanation of the east 37 feet of the two lots in that block fronting upon the west side of said South Park avenue. These two lots were known as lot 13 and lot 15. Adjoining lot 15 on the west was lot 16. Lot 13 was at that time owned by Nina Thomasson and Gwynn Garnett. Appellant, Harry S. Mceartney, owned the south 150 feet of said lots 15 and 16, and the balance of lots 15 and 16 was owned by George D. Phelps. At that time South Park avenue, both north and south of the block in which these lots were situated, was of the width of 66 feet. Along this block the street was 29 feet in width. The ordinance provided for the condemnation of this property for the purpose of improving South Park avenue by opening it to a uniform width. On September 1, 1893, the city of Chicago, with the consent of the owners of said lots, took possession of the strip sought to be condemned, and at once completed the proposed improvement. Thereafter compensation was awarded the owners in the condemnation proceeding for the owners in erty taken, as follows: To the owner of lot 13, $12,025; to the owner of the south 150 feet of lots 15 and 16, $4,162.50; to the owner of lots 15 and 16, except the south 150 feet thereof, $3,312.38. The ordinance, pursuant to which the condemnation proceedings were had, provided that this local improvement should be paid for by a special assessment to be levied upon the property benefited thereby to the amount that the same might be legally assessed therefor, the remainder to be paid by general taxation, in accordance with article 9 of the said Cities and Villages Act of 1872. Appellant thereafter became the assignee of the judgment awarding compensation to Thomasson and Garnett, and thereafter purchased from Phelps the remainder of lots 15 and 16, and became the assignee of his judgment. He caused that part of lots 15 and 16 not taken for street purposes to be subdivided into eight lots, each fronting upon South Park avenue, such subdivision being known as Snow & Co.'s subdivision. To raise the amount of the compensation awarded in accordance with the local improvement ordinance various supplemental petitions were filed under section 53 of said article 9, with the result that in the year 1909 all the property which had been specially benefited by the improvement had been assessed therefor except lots 1 to 8, inclusive, of said Snow & Co.'s subdivision, owned by appellant or his grantees. The amounts collected by such assessments prior to the time of the filing of the petition herein had been distributed and paid upon the three judgments, as follows: On May 9, 1901, there was paid upon the Thomasson and Garnett judgment, by special assessment against the remainder of lot 13, the sum of $4,245.96, and on December 31, 1902, there was paid in cash on the same judgment, from special assessment collections from other property, the sum of $3,000. On December 31, 1902, there was paid in cash upon each of the other two judgments the sum of $1,451.39. A number of proceedings were had for the purpose of making a special assessment against the property in Snow & Co.'s subdivision owned by appellant or his grantees, all of which were resisted by appellant. He first contended that this property was not liable for any special assessment, for the reason that the benefits to this property were taken into consideration by the jury in fixing the amount of the damages in the condemnation proceeding. This question was finally determined contrary to this contention in City of Chicago v. Mecartney, 216 Ill. 377, 75 N. E. 117. Since the filing of the petition herein another proceeding was had to make a special assessment against the property included in Snow & Co.'s subdivision, wherein it was contended by the grantees of appellant that the city had lost its power to make a special assessment for this improvement, which question was also finally determined against that contention in City of Chicago v. Willoughby, 249 Ill. 249, 94 N. E. 513. On November 27, 1909, appellant, by leave of court, filed his petition in the condemnation proceedings, wherein he set up all the steps which had been taken from the time of the passage of the local improvement ordinance down to that date, including the circumstances under which the city had taken possession of the strip sought to be condemned, and prayed for an absolute and unconditional judgment in the cause against the city for the amounts of said three judgments, respectively, with interest thereon on from September 1, 1893, less the amounts which had been paid thereon. The city was required to answer this petition, and after a full hearing a judgment was rendered by the circuit court dismissing the petition, which judgment has been affirmed by the Appellate Court for the First District. This appeal has been prosecuted from the judgment of the Appellate Court on a certificate of importance.

[1] The first proposition argued by both parties is whether the circuit court had jurisdiction, in any event, to enter the judgment prayed for by this petition. A condemnation proceeding such as this is not founded on the common law, but must have a statutory origin. The only statute in existence upon which this proceeding could be founded at the time the original ordinance was passed and the condemnation proceeding begun was said article 9 of the Cities and Villages Act of 1872, which act is expressly referred to in the ordinance as the statute upon which it was based. This act has been superseded by the Local Improvement Act of 1897 (Laws 1897, p. 102), which provides that pending proceedings shall be completed under the provisions of the act of 1872. While it is true that the city was empowered at that time to condemn land for various corporate purposes and pay for the same out of its general funds without any reference to said article 9 of the Cities and Villages Act, it was only under the provisions of this article that the city might condemn property for a local improvement. The only power the city had in the premises, and the only power and authority possessed by the court in the proceedings instituted pursuant to the ordinance, was that derived from said article 9. That article provided for a purely statutory proceeding, and was a complete code in itself. By section 1 it provided ‘that the corporate authorities of cities and villages...