Hamer v. Village of Deerfield

• Decision Date: 25 November 1975
• Docket Number: No. 74--117,74--117
• Citation: 338 N.E.2d 242,33 Ill.App.3d 804
• Parties: Paul E. HAMER et al., Plaintiffs-Appellants, v. VILLAGE OF DEERFIELD, a Municipal Corporation and Gulbrandsen, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 242

338 N.E.2d 242

33 Ill.App.3d 804

Paul E. HAMER et al., Plaintiffs-Appellants, v. VILLAGE OF DEERFIELD, a Municipal Corporation and Gulbrandsen, Defendants-Appellees.

No. 74--117.

Appellate Court of Illinois, Second District, Second Division.

Nov. 25, 1975.

Paul E. Hamer, Northbrook, for plaintiffs-appellants.

Pedersen & Houpt, Chicago, for defendants-appellees.

RECHENMACHER, Presiding Justice:

Plaintiffs appeal from the dismissal, on defendants' motion, of a four count taxpayers' suit for declaratory judgment, injunction, and other relief, challenging the validity of a '50--50 cost sharing program' for sidewalk replacement in effect since the year 1961 by the Village of Deerfield; under such 'program' the property owner pays half of the cost of replacement of defective sidewalks in front of his property and the Village pays the other half.

The material facts alleged in the second amended complaint filed March 30, 1972, are in substance as follows: Plaintiffs are residents, taxpayers and owners of property on Pine Street in Deerfield, a municipality of less than 25,000 in population. On June 9, 1971, plaintiff Hamer, by letter, notified Deerfield that the sidewalk in front of his property needed replacement. The letter stated that four days earlier a child on roller skates fell there and Hamer requested that Deerfield repair the defective sidewalk at its earliest convenience. On June 11, an employee of defendant Gulbrandsen (a cement contractor employed by Deerfield) notified Hamer that upon payment of half the cost, i.e., $85.50, portions of the sidewalk which that man had marked with red paint would be replaced. On June 15 Hamer asked Deerfield's Village Manager for a letter setting forth details of the sidewalk replacement program. He received such a letter dated June 24. Hamer then asked to be furnished the statutory basis for the program and received a letter dated July 8 from Deerfield's attorney. That letter stated that it was based on Section 11--84--1 of the Municipal Code. On July 19 Hamer wrote a letter to the Village President and its Board of Trustees relating the foregoing facts and stating that Hamer had visited the Village Hall on July 19 to examine any ordinances that may be required under Section 11--84--1 and was told by the Village Manager that there were none; Hamer then requested in that letter that the defective sections of the sidewalk 'be replaced by means of Motor Fuel Tax Funds' and that the sidewalk repair program comply with 'statutory requirements'. On August 5 Hamer received the Village Manager's letter dated August 4 stating that Deerfield's 'Mayor and Board of Trustees', at their meeting, had declined to utilize motor fuel tax funds for the replacement of the sidewalk; that 'one of the trustees' was of the opinion, after viewing the walk, 'that it was not deteriorated to the point where a person would have difficulty negotiating it and therefore is not seriously in need of replacement'. Thereupon Hamer, by letter dated August 9 to Deerfield's corporate authorities, requested them to terminate the present sidewalk replacement program, and to return to Deerfield's citizens all funds obtained thereunder. (Attached to the complaint are copies of all of those letters as exhibits.)

Deerfield enacted no ordinance relating to the sidewalk program 'until an ordinance was recently proposed'. ¹ The complaint alleged that Deerfield is without power to enact the proposed ordinance and that it 'will be null and void'. The complaint further alleged that since 1961 Deerfield expended tax moneys without statutory power in maintaining that program and many citizens participated therein and were required to pay fees 'under coercion or complusion', the amount of which cannot be ascertained without an accounting: that Plaintiff Reticker paid $168 to Deerfield in 1969 to have the sidewalk in front of his home on Pine Street repaired under the program; that Deerfield's Village Manager represented it was a valid program when he knew or should have known that such representation was false; that similar representations were made to plaintiffs and the public generally, in reliance on which the property owners were induced to pay fees. The complaint then lists four other addresses on Pine Street, as well as that of Reticker, where public sidewalks were repaired, and states that only those 'who participate' in the program have their sidewalks repaired.

The complaint further alleged that all of the sidewalks are in the public right-of-way, not on private property, and are under Deerfield's Control and jurisdiction; that the sidewalk in front of plaintiffs' (Hamers') property, next to the street curb, has a hole two inches deep at the curb line and measures fourteen by forty-five inches; that the Village of Deerfield having received notice of the defect is liable under the Tort Immunity Act (Ill.Rev.Stat.1971, ch. 85, par. 3--102) for injuries received as a result thereof, and that any resulting judgments would have to be paid from tax moneys partly paid by plaintiffs.

In Count I, plaintiffs on behalf of themselves and all other citizens, property owners and taxpayers, ask for declaratory judgment respecting the rights, duties and legal relations of the parties, adjudging Deerfield's sidewalk replacement program to be in contravention of the Municipal Code, requiring an accounting of public funds expended thereon and refunds to those property owners who paid fees thereunder.

In Count II, plaintiffs on behalf of themselves and others similarly situated (taxpayers, property owners and citizens), ask for a mandatory injunction directing Deerfield to comply with applicable provisions of the Municipal Code in replacing future sidewalks, to repair defective sidewalks under any financial plan available under the Municipal Code or Highway Code, and for an accounting and refund of sums heretofore paid under the present sidewalk program.

Count III, brought in the name of the People of the State of Illinois on the relation of plaintiffs as petitioners, asks in the alternative, for a writ of mandamus commanding Deerfield to perform its duty to replace sidewaks in compliance with the Municipal Code and to finance such replacement pursuant to the Municipal Code or Highway Code, and for an accounting and refund.

Count IV is brought by plaintiffs as Deerfield residents, citizens and taxpayers, in the name of, and for the benefit of, Deerfield, and asks that defendant Gulbrandsen, who has contracted with, and received moneys from, Deerfield for replacement of portions of certain sidewalks in Deerfield, be adjudged and declared liable for any moneys paid to him by Deerfield without lawful authority, and for an accounting of such sums and restitution thereof to Deerfield.

Defendants filed their motions to dismiss plaintiffs' second amended complaint (one motion directed to the Hamers and the other to plaintiff Reticker), grounded in substance on its insufficiency for failure of each of the counts to allege causes of action upon which the relief requested can be granted. In November, 1973, the trial court entered its order dismissing the second amended complaint. ²

The ultimate question to be decided is whether the second amended complaint or any of its counts state a cause of action on which relief can be granted. It is apparent...