Gurnee v. the City of Chicago.

• Decision Date: 30 April 1866
• Citation: 1866 WL 4449,40 Ill. 165
• Parties: DENTON GURNEEv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

40 Ill. 165

1866 WL 4449 (Ill.)

DENTON GURNEE

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Superior Court of Chicago; the Hon. JOHN M. WILSON, Chief Justice, presiding.

This is an appeal from a judgment rendered in the court below upon a special assessment for curbing, grading and paving, with wooden block pavement, Van Buren street, from the west line of Michigan avenue to the east side of State street, in the city of Chicago.

All of the material facts in the case are fully set forth in the opinion of the court.

Mr. J. L. THOMSON and Messrs. WAITE, TOWNE & CLARK, for the appellant.

Mr. S. A. IRVIN, for the appellee. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It is first objected that the collector's warrant was not signed by the city comptroller. By chapter nine, section seven of the city charter, the warrant is required to be signed by the mayor, comptroller and city clerk. We find their names to this warrant, but immediately preceding the name of Kimball, comptroller, is the word “countersigned.” We are unable to appreciate this objection. Where lexicographers are consulted, we find that the word means to sign what has already been signed by a superior; to authenticate by an additional signature. If Kimball's name had followed that of the mayor, who was his superior officer, it would, under this definition, have been a counter signature, without the use of the preceding word, as though it had been written. The scope of the objection would seem, then, to be, that all of these officers must sign first, or before it was signed by another. This could not be done. But the law is answered where the instrument is authenticated by the signatures of the officers named in the statute, and that has been done in this case.

It is again objected that the commissioners were not sworn in the manner required by the charter. Chapter seven, sections five and six, requires that the commissioners, before they proceed to make the assessment, shall be sworn to execute their duties to the best of their ability, and to give six days' notice of the time and place of meeting to make the assessment. The mayor approved the ordinance requiring this improvement on the 30th of September, 1865, while the oath was taken by the commissioners on the 28th day of that month. The report recommending this improvement was made by the commissioners, and it was passed by the common council on the 25th of September, but it was not presented to or approved by the mayor until the 30th. The ordinance did not, therefore, become complete and operative until two days after the commissioners had taken the oath to faithfully discharge their duty under it. In taking the oath there was a literal compliance with the law. It was taken before proceeding to make the assessment. And, although the ordinance had not been approved, still it had passed the common council, and was a proceeding then in progress, and all that could be said is that it was taken at an earlier period than the law required. If the ordinance had not passed the council, it would probably have been nugatory, but, in this case, it only awaited the signature of the mayor to render the ordinance binding. If the authority or requirement to take the oath had been alone contained in the ordinance, then it would have been premature and unauthorized; but the oath is required by the statute, and it does not require it to be taken after the approval of the ordinance. Again, we do not see why an oath taken on the 28th is not as binding in conscience or in law as one taken on the 30th, especially when the ordinance requiring the performance of the duty only awaits the signature of the mayor, which was obtained within the time required by the statute.

It is again objected that the commissioners made no assessment of damages resulting to property holders by making the improvement. The sixth section of chapter seven of the city charter prescribed the duties of the commissioners in...