Friedman v. City of Chicago

• Decision Date: 04 December 1940
• Docket Number: No. 25630.,25630.
• Citation: 374 Ill. 545,30 N.E.2d 36
• Parties: FRIEDMAN et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

374 Ill. 545

30 N.E.2d 36

FRIEDMAN et al.

v.CITY OF CHICAGO et al.

No. 25630.

Supreme Court of Illinois.

Oct. 11, 1940.

As Modified on Denial of Rehearing Dec. 4, 1940.

Mandamus proceeding by Elias Friedman and another against the City of Chicago and another, to compel defendants to accept from plaintiffs certain special assessment bonds in payment of delinquent assessments levied against plaintiffs' properties. From a judgment of the circuit court awarding a writ of mandamus, defendants appeal direct to the Supreme Court.

Reversed.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

Barner Hodes, Corp. Counsel, of Chicago (Walter V. Schaefer and Edward J. Kelly, both of Chicago, of counsel), for appellants.

Leonard C. Mead, of Geneva, and Howard B. Bryant, of Chicago (Tolman & Megan, of Chicago, of counsel), for appellees.

STONE, Justice.

Appellants, the city of Chicago and its comptroller, have appealed from a judgment of the circuit court of Cook county awarding a writ of mandamus compelling them to accept from appellees certain special assessment bonds in payment of delinquent assessments levied against the properties of appellees. The validity of a statute is involved, hence the direct appeal.

No question of fact is involved, as the facts are stipulated. They are, that appellee Friedman owned certain real estate in the city of Chicago against which a special assessment payable in five annual installments, with interest at five per cent, was levied under the Local Improvement act. The fourth installment became due January 2, 1933, and was not paid. On March 30, 1935, the property was withdrawn from sale by the city at the collector's sale of delinquent property, in accordance with applicable statutes. This appellee also owned a special assessment bond issued to anticipate the collection of the fourth installment of the assessment. On January 2 last past, he, through his agent, tendered this special assessment bond to the comptroller of the city and requested that it be accepted as full and complete satisfaction of the assessment against his property and that the comptroller either endorse upon the bond as part payment a notation of the payment of principal and interest due on the assessment against his property, or, in the alternative, that he cancel the bond and issue a new one for the balance remaining due after deducting the principal and interest due on the assessment installment. This the comptroller refused to do. The bond was for an amount larger than the installment.

Appellee Gittere was likewise the owner of real property against which certain special assessments had been levied, payable in five installments with interest at five per cent. The fourth installment of this assessment became due January 2, 1934. It was not paid and, on August 12, 1935, the property was forfeited to the State for nonpayment of the assessment. Gittere also was the owner of a bond issued to anticipate the collection of that installment of the assessment. On December 2, 1939, he tendered his special assessment bond to the city comptroller and requested him to accept the bond-larger in amount than the installment-as full and complete satisfaction of the fourth installment of the assessment against his property and to either endorse as credit upon the bond the payment of principal and interest due upon that installment of the assessment, or, in the alternative, that the bond be canceled and a new one issued for the balance remaining due after crediting the principal and interest of the assessment. This the comptroller likewise refused to do and these proceedings ensued.

Appellees contend that they have a right to this writ of mandamus by reason of section 89 of the Local Improvement act, as amended in 1939, Ill.Rev.Stat.1939, c. 24, § 795. Appellants say that if the amendment be construed to apply to special assessment bonds issued prior to July 12, 1939, when the amendment went into effect, the amendment violates the due process and contract clauses of sections 2 and 14 of article 2 of our constitution, Smith-Hurd Stats. and section 10 of article 1 thereof and likewise the fourteenth amendment, to the constitution of the United States. The trial court found that the 1939 amendment of section 89 applied to the bonds issued prior to July 12, 1939; that it did not violate the constitutional provisions referred to; that the tenders of bonds by appellees in payment of those assessments were legal, and it was the duty of the comptroller to accept such tenders and either endorse payment in proper amounts on each of the bonds or cancel the bonds and issue new ones in their stead for the remaining unpaid balance. The writ of mandamus was issued accordingly.

The question first to be considered here is whether the amendment to section 89, in force July 12, 1939, applies to bonds issued prior to its enactment, and, if so, second, whether it is open to the constitutional weakness complained of. Prior to the amendment of 1939, section 89 of the Local Improvement act (Ill.Rev.Stat.1937, chap. 24, par. 795, p. 547), provided as follows: ‘Any property owner may pay his assessment, wholly or in part, with the bonds or vouchers issued under this act on account of such assessment, applying, however, the bonds and vouchers of each series only to the payment of the installments to which they relate. In making such payments, such vouchers and bonds shall be taken at their par value and interest accrued to the date of making such payment. All vouchers and bonds received in payment of such assessment shall be canceled by the officer receiving the same, as of the date of their receipt, and deposited with the treasurer of the said town or village issuing the same.’ In 1939 this section was amended (Laws of 1939, pp. 382, 383) to read as follows: ‘Any property owner, or his agent, may pay his assessment wholly or in part, either before or after the same is due, and whether or not the assessment has been withdrawn from collection or the property assessed has been sold to any municipality or forfeited to the State for the non-payment of such assessment, with the bonds or vouchers issued under this Act on account of such assessment, applying, however, the bonds and vouchers of each series only to the payment of the installments to which they relate. In making such payments, such vouchers and bonds shall be taken at their par value and interest accrued to the date of making such payment. All vouchers and bonds received in payment of such assessment where the entire amount equals or is less than the assessment shall be cancelled by the...