Elston v. the City of Chicago.
| Citation | 89 Am.Dec. 361,40 Ill. 514,1866 WL 4522 |
| Parties | DANIEL T. ELSTON et al.v.THE CITY OF CHICAGO. |
| Decision Date | 30 April 1866 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.
The opinion of the court contains a statement of the case.
Mr. WALTER B. SCATES, for the appellants.
Mr. S. A. IRVIN, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:
This was an action of assumpsit for money had and received, laid out and expended, etc., brought by Robert R. Clark and others against the city of Chicago, in the Superior Court of that city, to recover back money paid by them to the city on an assessment for deepening the Chicago river, and for interest on the sum paid. The plea was the general issue. The cause was tried by the court without a jury, and judgment for costs for the city. To reverse this judgment, the plaintiffs appeal to this court.
The points made by appellants are, that the city had no authority to make an assessment to deepen the river, and, therefore, all the proceedings for such purpose are void; that Coventry, who made the stipulation, as attorney for the Elston estate, had no authority to make it, and, therefore, the judgment was not binding on the property of the estate; that the money sought to be recovered back was paid on an illegal claim. It was an involuntary payment, and may be recovered back in this action.
The first proposition is established by the case of Wright v. Chicago, 20 Ill. 252. The order in this case, however, was for deepening and widening the river, to do the latter of which, express authority is conferred upon the city council by section five of the act of February 27, 1845, which was held to be in that case substantially an amendment of the city charter. The order for widening the river was, consequently, valid to that extent, and could be enforced. But that is not the whole case. The facts are, that the proprietors of the property bounded by this river had, in 1857, agreed among themselves that the river should be deepened and widened, and that they would advance the money pro rata for the purpose, if the city authorities would agree to levy an assessment on the proprietors to be benefited by the improvement. They agreed to petition the city council, asking them to let the work, the property owners agreeing, on their part, to pay money on it to a certain extent, and to such a time as the city should have made and collected its assessment. Accordingly, the council, on the 24th of August, 1857, instituted proceedings for a special assessment upon the real estate deemed benefited for deepening and widening that part of the river, and on that day passed these orders: Ordered, that the north branch of the Chicago river be deepened to the depth of eleven feet below low water mark, and widened so as to form a channel of fifty feet in the bottom, and not less than seventy-five feet at low water mark, in accordance with the superintendent's estimate herewith submitted.
Ordered, that the sum of sixty-four thousand four hundred and fifty dollars be assessed upon the real estate deemed benefited by said improvements, etc.
Commissioners were duly appointed, who made an assessment and returned it to the common council, stating therein, that it did not exceed three per cent. of the value of the real estate assessed, which the council duly approved and confirmed, and a warrant, issued on the 7th of October, 1857, to the proper collector, to collect the same. This was called “Warrant No. 5 North and West.”
Block one, in Elston's addition, was included in the assessment, valued at $170,000, and assessed for $5,029 29/100.
The city collector, failing to collect the assessment on this block, applied, at the January Term, 1858, of the court of Common Pleas, for judgment against it, having first given the notice required by law, at which term a judgment was rendered against this block, with others, and a warrant ordered to be issued for the sale of the same, in which warrant block one was not included. The work was completed in the fall of 1858.
On the 9th of March, 1858, the appellant Clark, who had intermarried with Blanche Elston, one of the two heirs at law of Daniel Elston, took from the collector this receipt:
“CITY COLLECTOR'S OFFICE, March 9, 1858.
State of Illinois, city of Chicago.
Received of R. R. Clark $2,011.79, being the amount assessed by said...
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