Cummings v. West Chicago Park Com'rs

• Citation: 181 Ill. 136,54 N.E. 941
• Parties: CUMMINGS et al. v. WEST CHICAGO PARK COM'RS.
• Decision Date: 13 October 1899
• Court: Supreme Court of Illinois

181 Ill. 136

54 N.E. 941

CUMMINGS et al.

v.WEST CHICAGO PARK COM'RS.

Supreme Court of Illinois.

Oct. 13, 1899.

Appeal from Cook county court; William T. Hodson, Judge.

Special assessment proceedings by the West Chicago park commissioners for the improvement of Douglas Boulevard. From a judgment confirming the assessment, E. A. Cummings and others appeal. Affirmed.

Wilson, Moore & McIlvaine, for appellants.

Francis A. Riddle and H. S. Mecartney, for appellee.

BOGGS, J.

This is an appeal from a judgment confirming a special assessment for the improvement of Douglas Boulevard, extending from Garfield Park, south and east, to Douglas Park. A former proceeding to levy an assessment was before us under the titles of Culver v. People, 161 Ill. 89, 43 N. E. 812;Farrell v. Town of West Chicago, 162 Ill. 280, 44 N. E. 527;Connor v. Town of West Chicago, 162 Ill. 287, 44 N. E. 1118; and White v. Town of West Chicago, 164 Ill. 196, 45 N. E. 495. By the decisions in those cases the proceeding was set aside and the judgment of confirmation reversed. The present petition was then filed, based upon a new ordinance, and this was brought before us in Commissioners v. Farber, 171 Ill. 146, 49 N. E. 427. Since the reversal of the judgment in that case there has been a hearing, at which the assessment roll was confirmed. At the last hearing appellants moved to dismiss the petition, on the ground that the original ordinance was declared void in Culver v. People, supra, and therefore said ordinance did not provide for any special assessment which could ever become a charge upon private property, and this attempted assessment is contrary to law and in conflict with the fourteenth amendment to the constitution of the United States. This question was decided adversely to this claim in Commissioners v. Farber, supra, but it is insisted that the decision in that case was wrong. The constitution and the statutes provide for making local improvements by special assessment, and we have uniformly held that they confer no authority to make a local improvement upon some other plan, or without any provision for a special assessment, and afterwardsprovide for payment by such assessment. The improvement is to be made by special assessment, and consequently there must be a provision for its payment by that method when it is made. The liability to a special assessment must be created by the ordinance which provides for making the improvement, and such a liability is created by a provision of the ordinance that the cost of the improvement shall be paid by special assessment. The original ordinance, which was passed upon in Culver v. People, supra, provided that the improvement should be made, ‘and that the cost thereof, together with the cost of making and collecting the assessment to be made therefor, shall be paid by special assessment upon contiguous property abutting on said boulevard.’ This was a provision that the improvement should be made by special assessment, and was sufficient upon that subject. The ordinance, however, went further and there was an attempt to create a particular assessment unknown to the law governing the park commissioners. In that attempt section 2 of the ordinance ordained as follows: ‘That said special assessment shall be divided into installments, that the first shall be twenty per cent. of the total amount of said assessment, and that the deferred installments shall bear interest at the rate of six per cent. per annum.’ A petition was filed in the county court for the appointment of commissioners to spread an assessment, to be divided into installments, the first 20 per cent. payable on confirmation of the assessment, and the remainder in four installments, payable annually thereafter. There was no authority of law for the particular assessment provided for in the ordinance, or the making or confirmation of an assessment of that character, and there was no power or jurisdiction in the court to entertain such a petition and grant the prayer thereof, or render the judgment prayed for. The right to levy special assessments is derived solely from statutes, and a special statutory jurisdiction is conferred upon the county court by the statute providing for an assessment. The court may obtain jurisdiction of the subject-matter of a special assessment by the filing of a petition under some existing law, calling upon the court to act. If a petition based on any existing statute were presentea, the court would acquire jurisdiction over the subject, and if such jurisdiction once attached, no matter how erroneous the judgment might be, it would be binding, unless reversed in a direct proceeding. In this case the particular assessment provided for was without authority of law, and the ordinance was void as to such provision. The petition called upon the court to act under the void provision forbidden by the law, and the court could not, under it, enter any judgment for a different assessment. The court was merely asked to do something which it had no power to do in a matter not pertaining to its general jurisdiction, where jurisdiction must be derived from statute. We therefore held that the ordinance and petition did not confer jurisdiction. There remained, however, in the original ordinance the valid provision that the cost of the improvement should be paid by special assessment, and we adhere to our conclusion in Commissioners v. Farber, supra, that it was a sufficient basis for the subsequent ordinance and proceeding to enforce the liability. We think the court was right in overruling the motion based on the proposition that the original ordinance did not provide for any special assessment.

The statute under which this assessment was made contains a proviso as follows: ‘Provided, that no improvement or sewer shall be made or constructed under the provisions of this section, except upon the petition of the owners of a majority of the land fronting on the proposed improvement or sewer.’ Hurd's Rev. St. 1895, p. 1088, § 3. The petition recites that the petitioner was requested and authorized to make the improvement by a petition in writing of the owners of a majority of the land fronting on said improvement, as required by said act. At the close of the testimony on behalf of the appellee commissioners, appellants moved to dismiss the proceeding on several grounds, one of which (No. 5) was as follows: ‘That no petition of the property owners is proven, as required by the statute of 1873.’ The ordinance adopted by the corporate authorities of the town of West Chicago, providing for the improvement in question, was received in evidence. It recited that the park commissioners had control of the boulevard to be improved, and desired to improve the same, and had so notified the said corporate authorities of such town, and had presented to such corporate authorities plans, specifications, and estimates of the cost of the improvement, and recited further as follows: ‘Whereas, the commissioners have submitted to the corporate authorities of the town of West Chicago a petition of the owners of a majority of the land fronting on the said improvement, duly verified by their engineer; and whereas, the corporate authorities of the town of West Chicago have found that said petition contains the signatures of the owners of a majority of the land fronting on said Douglas Boulevard: Now, therefore, be it ordained,’ etc. Exclusive jurisdiction and power to adopt ordinances providing for such improvements were conferred by law upon the said corporate authorities. The park commissioners were not, as they have been by later statutes, invested with power to adopt an ordinance, but were required to apply to the corporate authorities of the town for an ordinance under which the improvement might be made. The effect of the proviso hereinbefore quoted was to prohibit such corporate authorities from passing the ordinance in question unless petitioned to do so by the owners of a majority of the land fronting on the proposed improvement. Such a petition was a prerequisite to the power of the corporate authorities to enact the ordinance. It was, therefore, of necessity, the official duty of such corporate authorities to ascertain, before assuming to act on the question of the adoption of the ordinance, whether a petition which fulfilled the requirements of the statute was before them. It appears from the recitations of the ordinance that a petition purporting to be that which the law demanded was laid before the corporate authorities, and that that body entered upon an official investigation in order to ascertain whether the petition met the requirements of the law, and the ordinance sets forth the result of such official action taken by such authorities. The ordinance recites that said corporate authorities, upon such official investigation, found the petition contained the signatures of the owners of a majority of the land fronting on said Douglas Boulevard so proposed to be improved. This recitation we think properly receivable in evidence as prima facie proof of the facts recited. The corporate authorities of the town were by the statute invested with sole power in the premises, and were erected by the statute into an official body charged with the duty of acting impartially, in their official capacity, as between the park commissioners and the owners of private property which would be subject to the burden of special assessments in the event the improvement as proposed by the park commissioners should be carried into completion. The official duty first devolving upon the corporate authorities was to ascertain whether the owners of a majority of the land fronting on the proposed improvement had petitioned for the improvement. They discharged that duty. The clerk of the town was by said section 3 of the act expressly authorized and required to keep a record of the proceedings of said corporate authorities, and record the...