City of Naperville v. Wehrle

• Decision Date: 25 October 1930
• Docket Number: No. 19986.,19986.
• Parties: CITY OF NAPERVILLE v. WEHRLE et al.
• Court: Illinois Supreme Court

340 Ill. 579

173 N.E. 165

CITY OF NAPERVILLE

v.WEHRLE et al.

No. 19986.

Supreme Court of Illinois.

Oct. 25, 1930.

Commissioner's Opinion.

Proceedings by the City of Naperville against Xavier Wehrle and others to levy a special assessment for a local improvement and to acquire by condemnation certain land and easements. From a judgment confirming assessments, Theodore F. Boecker, Jr., and three others appeal.

Reversed and remanded.Appeal from Du Page County Court; S. L. Rathje, Judge.

Joseph A. Reuss, of Naperville (Worcester & Lord, of Aurora, of counsel), for appellants.

William, R. Friedrich, City Atty., of Naperville, and Langworthy, Stevens McKeag & McCornack, of Chicago (Benjamin Franklin Langworthy, of Chicago, of counsel), for appellee.

EDMUNDS, C.

On March 28, 1929, the city of Naperville filed its petition in the county court of Du Page county to levy a special assessment for a local improvement consisting of a connected system of sewers, with necessary appurtenances, in that portion of the city known as Naperville Heights, intercepting relief and outlet sewers in certain streets, and a sewage disposal plant. The petition also prayed that steps be taken to acquire by condemnation certain land and easements. On the same date the court appointed Truman I. Myers and Fred G. Orcutt as commissioners, to act with Herbert P. Thompson, president of the board of local improvements, in reporting compensation to be made to the owners of private property to be taken or damaged, together with real estate benefited and the amounts of benefits thereto, and to make and file an assessment roll, as required by law. By the order of appointment it was provided that Myers and Orcutt should receive a fee of $1,320 each, to be taxed as costs. The oath of office of the commissioners was executed on March 29, 1929, and filed May 6, 1929. Theodore Boecker and others filed objections. On June 12, 1929, the court by agreement, without a jury, began the hearing of objections and taking proofs. On August 5, 1929, the court overruled all legal objections, and, finding that the property of objectors was not assessed more than it was benefited, entered judgment of confirmation against it. From this judgment the present appeal was taken by Boecker, Lawrence A. Schwartz, J. H. Clancy, and George Reuss.

Appellants contend that Myers was not a competent and disinterested commissioner. If he was not, his participation infects the action of the whole body and makes it voidable. Rock Island & Alton Railroad Co. v. Lynch, 23 Ill. 645; State v. Crane, 36 N. J. Law, 394. The statute provides that upon the filing of a petition praying that steps be taken to ascertain just compensation for private property to be taken for the purpose of a local improvement, the court shall enter an order ‘designating two competent persons as commissioners, to act with the superintendent of special assessments (where such officer is provided for by this Act and in other cases the president of said board of local improvements) who shall investigate and report to the court the just compensation to be made to the respective owners of private property which shall be taken or damaged for the said improvement, and also what real estate will be benefited by such improvement, and the amount of such benefits to each parcel. Neither shall be employees of the petitioning municipality and both shall be desinterested persons. * * * Said three commissioners shall be duly sworn to make a true and just assessment of the cost of said improvement according to law.’ Cahill's Rev. St. 1929, c. 24, par. 136. In view of the fact that lands of the school district were among those assessed, it is urged that Myers did not meet the qualifications thus prescribed, because at the time of his service as commissioner he was secretary of the Naperville board of education, receiving financial compensation for his services in such capacity.

[2] To make assessments for improvements of this kind requires action of a judicial nature (State v. Crane, supra; City of Rochester v. Holden, 224 N. Y. 386, 121 N. E. 102); and it is the general rule, even apart from statute, that officers acting in a judicial or quasi judicial capacity are disqualified by their interest in the controversy to be decided. Tumey v. Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A. L. R. 1243;Nettleton's Appeal, 28 Conn. 268;City of Grafton v. Holt, 58 W. Va. 182, 52 S. E. 21,6 Ann. Cas. 403; Ex parte Cornwell, 144 Ala. 497, 39 So. 354;Lindsay-Strathmore Irrigation District v. Superior Court, 182 Cal. 315, 187 P. 1056. In County of Orange v. Storm King Stone Co., 229 N. Y. 460, 128 N. E. 677, the court held that the words ‘disinterested’ and ‘competent freeholders,’ as used in the New York highway and condemnation laws in prescribing qualifications for commissioners of appraisal in condemnation proceedings, mean a disinterestednessand a competency like that of a juror or judge. Long ago it was stated by this court that commissioners appointed to assess damages in eminent domain proceedings (the statute requiring ‘competent and disinterested persons') ‘are quasi jurors, and should be, like them, ‘omni exceptione majores.” Rock Island & Alton Railroad Co. v. Lynch, supra. In holding that an employee of the United States is not competent as a juror where defendant is on trial for conspiracy against the United States, the Supreme Court of the United States said, referring to a statute prescribing certain qualifications for jurors: ‘Jurors must at least have the qualifications mentioned in § 215, but that section does not, in our opinion, so far alter the common law upon the subject as to exclude its rule that one is not a competent juror in a case if he is master, servant, steward, counselor, or attorney of either party. In such case a juror may be challenged for principal cause as an absolute disqualification of the juror. * * * Modern methods of doing business and modern complications resulting therefrom have not wrought any change in human nature itself, and therefore have not lessened or altered the general tendency among men, recognized by the common law, to look somewhat more favorably, though perhaps frequently unconsciously, upon the side of the person or corporation that employs them, rather than upon the other side. Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. The law therefore most wisely says that, with regard to some of the relations which may exist between the juror and one of the parties, bias is implied, and evidence of its actual existence need not be given.’ Crawford v. United States, 212 U. S. 183, 29 S. Ct. 260, 264, 53 L. Ed. 465,15 Ann. Cas. 392. Other cases illustrative of the same principle are AEtna Ins. Co. v. Stevens, 48 Ill. 31;Hufnagle v. Delaware & Hudson Co., 227 Pa. 476, 76 A. 205,40 L. R. A. (N. S.) 982,19 Ann. Cas. 850;Pearce v. Quincy Mining Co., 149 Mich. 112, 112 N. W. 739,12 Ann. Cas. 304;Block v. State, 100 Ind. 357;Stumm v. Hummel, 39 Iowa, 478;Central Railroad Co. v. Mitchell, 63 Ga. 173; and Hubbard v. Rutledge, 57 Miss. 7.

[3] That a commissioner whose duty it was to assess benefits against the property of the corporation of which he was an officer and from which he was receiving compensation was neither ‘competent’ nor ‘disinterested’ would seem too clear, in the light of the above principles, to require discussion. Appellee insists, however, that authority for the qualification of Myers is found in People v. Mayor of Syracuse, 63 N. Y. 291, where the fact that one of the commissioners was a trustee of a Presbyterian Church which owned property assessed for the improvement was held not to disqualify him. The court there emphasized...