Hills v. the City of Chicago.

• Decision Date: 30 September 1871
• Parties: K. HOBERT HILLSv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

60 Ill. 86

1871 WL 8089 (Ill.)

K. HOBERT HILLS

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. HITCHCOCK, DUPREE & EVARTS, for the appellant.

Mr. M. F. TULEY, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

At the March term, 1871, of the Superior Court of Cook county, the collector of the city of Chicago, upon his report of special assessments, for municipal purposes, remaining unpaid, upon a certain special assessment warrant, made application to that court pursuant to the 12th section of chapter 9 of the city charter, for judgment against the several lots and parcels of land described in said warrant, according to the form of the statute in such case made and provided.

The appellant, as owner of a portion of the property described, appeared at the term stated, and, under the provisions of the 15th section of said chapter, filed objections to such judgment, of which the only material one is as follows: “This application by the city collector is in violation of the provisions of section 4, article 9 of the constitution of this State.” The court overruled the objections, entered judgment against each lot for the sum annexed to it, being the amount of the assessment and costs due and unpaid, and ordered such lots, or so much as should be sufficient to satisfy the amount of the assessment and costs unpaid thereon, to be sold as the law directs. From which judgment an appeal was taken to this court. The only question presented upon this appeal for decision is based upon the objection in the court below, above specifically set forth.

The judgment and order of sale appear to be in exact conformity with the form prescribed in section 16 of chapter 9, (Gary's Laws, 90). By section 17 of same chapter, it is made the duty of the clerk of such court, within twenty days after the order is granted, to make out, under the seal of said court, a copy of so much of the collector's report in such case as gives a description of the land or other property against which judgment shall have been rendered, and the amount of such judgment, together with the order of the court thereon, which shall constitute the process on which all lands etc., shall be sold for the amount of any taxes, assessments, etc., so levied, assessed or charged upon them. This section proceeds: “The said city collector is hereby expressly authorized and empowered to make sale of such lands, lots, etc., upon ten days' notice,” etc.

In the 18th section it is enacted that “the proceedings may be stopped at any time upon payment of said judgment to the collector.” In the 20th, that “certificates of sale shall be made and subscribed by the collector,” and that “the collector shall continue such sale from day to day, until all the lots, etc., contained in his precept, on which judgment remains unpaid, shall be sold or offered for sale.” (Gary's Laws, 91.)

It is obvious, from the form of the order prescribed, and the subsequent provisions of the charter referred to, that, in legal effect, it is an order for such sale to be made by the city collector, and nobody else. For all the purposes of the question we are now considering, it is to be regarded in precisely the same light as if it directed, in so many words, that the several lots, etc., be sold by the collector of the city of Chicago as the law directs.

If such be the legal effect of the order of sale, and if the 4th section of article 9 of the constitution must be interpreted as prohibiting such sale by the city collector because he is not a general officer of the county having authority to receive State and county taxes, then it must follow that the order which purports to authorize the city collector to do what he is thus prohibited from doing is itself prohibited, and the court had no power to make it; for it would be a legal solecism to say that although the fundamental law forbids the doing of a particular act, yet it is not erroneous for a court to order the same act to be done. The only question, therefore, which remains in this case is: Does the section of the constitution referred to contain the prohibition supposed? The section is as follows:

“The general assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments for State, county, municipal or other purposes, that a return of such unpaid taxes or assessments shall be made to some general officer of the county having authority to receive State and county taxes, and there shall be no sale of the said property for any of said taxes or assessments but by said officer, upon the order or judgment of some court of record.”

The duty devolved upon the court is that of giving a judicial interpretation to the language here quoted. No aid in its performance can be derived by a comparison of this with other parts of the same instrument; for it seems to stand by itself, wholly disconnected from other clauses; nor by recourse to the adjudicated cases cited, because they involved the construction and effect of unanalogous provisions. The process will require the application of a few general rules and careful attention to the words employed. The first and cardinal rule is, that we must so construe it as to give effect to the intent of the people in adopting it. This rule nobody will question. But the second one we would invoke is that which will afford us...