Cody v. Town of Cicero

• Decision Date: 16 June 1903
• Citation: 67 N.E. 859,203 Ill. 322
• Parties: CODY et al. v. TOWN OF CICERO.
• Court: Illinois Supreme Court

203 Ill. 322

67 N.E. 859

CODY et al.

v.TOWN OF CICERO.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Cook County Court; W. T. Hodson, Judge.

Proceeding by the town of Cicero for the confirmation of a supplemental special assessment for an alleged deficiency of a special assessment originally levied for the improvement of certain streets, in which Arthur B. Cody and others file objections. From a judgment confirming the assessment, the objectors appeal. Affirmed.

Walpole Wood and Frederick Peake (Cody & Woodle, of counsel), for appellants.

George W. Woodbury, for appellee.

RICKS, J.

This appeal is brought to reverse a judgment of the county court of Cook county confirming a supplemental special assessment of the town of Cicero No. 648, for an alleged deficiency of the special assessment of the town of Cicero No. 312, originally levied for the improvement of certain streets in that town. In the original assessment no objections were filed, and that assessment was confirmed by an order of default on the 12th day of April, 1893. This supplemental assessment was not ordered by the board of trustees of the town until the 31st day of July, 1899, more than six years after the confirmation of the original assessment. The petition contained a certified copy of the ordinance for the supplemental assessment and a certified copy of the estimate of deficiency, as made by the commissioners. There were about 30 objectors, who objected for more than that number of lots and filed from 30 to 60 objections each. It is not necessary to set them out, as the purport of such as are relied on will appear from the consideration of the case as we proceed. The court heard the preliminary objections and overruled them, and a jury was waived, and a trial before the court, sitting as a jury, was had upon the question of the extent of benefits to the property assessed. The court, after the hearing, which was unnecessarily prolonged, and which resulted in an immense record, prolix in useless and inapplicable matter, confirmed the assessment. The matters considered by this appeal will be taken up in the order in which they are presented by appellants in their brief.

Their first proposition is: ‘The petition is fatally defective and discloses no right to levy this further assessment.’ The particular point made under this heading is: ‘It is nowhere averred in the petition, nor recited in the ordinance, nor set forth in any of the proceedings, what the total cost of the improvement was, nor what the amount was that was assessed or collected under Cicero special No. 312. There are no averments from which the court can determine, if the statements of the petition be taken as true, that the first assessment proved insuffficient for the public improvement for which it was levied.’ The ordinance in question was passed under authority of section 59, c. 24, p. 374, Hurd's Rev. St. 1899, and after reciting the original ordinance of April 30, 1892, under which the local improvements were made, and referred to in the briefs and ordinances as ‘special assessment No. 312,’ and after setting out the proceedings of the court as to the levy and collection of the original assessment, and the making of the estimate of the cost thereof, contains the following: ‘That said estimate and said assessment, as so confirmed, has proved insufficient, in that the cost of said improvement, including labor, materials, and all other expenses attending the same, and the cost of making and levying the assessment, exceeds the said estimated cost thereof as assessed, made, and reported to said board and so assessed and confirmed; that it is necessary to levy a second assessment to realize moneys which, together with the amount of said first assessment, shall be sufficient to pay for said public improvement, including labor, materials, and all other expenses attending the same, and the cost of making and levying the assessment provided for by said ordinance therein above recited, and also the cost of making and levying the assessment hereinafter provided for.’ The ordinance then with sufficient particularity provides for the levy of the assessment in question, to be paid in one installment or payment, and the appointing of commissioners to make an estimate of the additional amount of moneys necessary to be realized. The commissioners reported that they had carefully examined the subject, and estimated the amount necessary to be realized, which, together with the amount of the former assessment, should be sufficient to pay for the improvement and the expenses attending the same, and the costs and expenses of levying the assessment under the first ordinance, and the costs and expenses of levying the assessment under the ordinance in question, at $1,500. The report of the commissioners was approved by the board of trustees, and the city attorney was directed to file a petition for the assessment. With the petition the city attorney filed a copy of the ordinance and a copy of the report of the commissioners making the estimate, and made the same a part of his petition.

Appellants argue that the petition is insufficient because it did not contain a statement of the cost of the improvement, the amount of money collected under the original proceeding, the amount expended for the improvement, and the amount of deficit or insufficiency. The statute contains no such requirement, and says that the assessment shall be made in the same manner, as near as may be, as was the first or original assessment. In the original assessment the estimate of costs necessarily referred to excavations, fillings, material, catch-basins, and sundry items that would not and could not arise where the work had been completed, and the ordinance was simply to authorize the levy of a deficiency. The deficiency, and the costs of levying the same, were the only matters that required any estimate on the part of the second commission. The proceedings were instigated and carried on by the board of village or town trustees, who were the constituted authorities of the town, in the discharge of their official duties and under their official oath. Section 37 of the same act, relating to the petition under the original ordinance, provides, as to the petition: ‘There shall be attached to or filed with such petition a copy of the said ordinance, certified by the clerk, under corporate seal; also a copy of the recommendation of the board of local improvements, and of the estimate of the cost, as approved by the legislative body.’ If the procedure, then, under section 59 is to be the same, as near as may be, as the original procedure, we can see no reason for adding the additional requirement that there shall be a general accounting made in the ordinance or petition for the supplemental assessment. This board of trustees must be presumed to have furnished the commissioners who made the estimate the proper information and data which were in the possession and under the control of the municipal authorities,upon which to make the estimate, and the presumption will be indulged, until fraud or the contrary is shown, that they honestly and fairly discharged that duty, and that the estimate was made upon the proper information. This same objection was urged in Adcock v. City of Chicago, 172 Ill. 24, 49 N. E. 1008, and was there held adversely to the contention of appellants.

During the preliminary hearing upon the objections appellants moved the court to require the village trustees to come into court and make an accounting showing the matters as set forth in their above petition-that is, that they should come in and show how much was collected under the first assessment, how much the cost of the improvement actually was, and the expenses thereof, and how much remained unpaid, and of what it consisted. This the court declined to do. Appellants then sought, by writ of subpoena duces tecum, to have the clerk present the books and accounts relating to this improvement, and have the court hear testimony upon the question of the accounting; but as the office of cleark had recently changed hands, and the books and papers had been moved from one part of the village to another, the clerk was unable to produce them, and appellants now insist that the...