Hoehamer v. Village of Elmwood Park

• Decision Date: 24 October 1935
• Docket Number: No. 23111.,23111.
• Citation: 361 Ill. 422,198 N.E. 345
• Parties: HOEHAMER et al. v. VILLAGE OF ELMWOOD PARK.
• Court: Illinois Supreme Court

361 Ill. 422

198 N.E. 345

HOEHAMER et al.

v.VILLAGE OF ELMWOOD PARK.

No. 23111.

Supreme Court of Illinois.

Oct. 24, 1935.

Proceeding by the Village of Elmwood Park for the allowance of the refunding of a municipal bond issue. From a judgment allowing the refunding of the bond issue, Minnie Hoehamer and another appeal.

Affirmed.Appeal from Cook County Court; Edmund K. Jarecki, Judge.

James J. Barbour and Charles Collins, both of Chicago, for appellants.

Myron E. Wisch, of Chicago (Markman, Donovan & Sullivan, Henry O. Nickel, and Howard B. Bryant, all of Chicago, of counsel), for appellee.

ORR, Justice.

The two appellants, Minnie Hoehamer and Louise Beck, joined in a single appeal from a judgment of the county court of Cook county which allowed the refunding of a municipal bond issue under section 86a of the Local Improvement Act. Smith-Hurd Ann. St. c. 24, § 792a.

The facts are not in dispute, although each appellant has presented separate questions of law. A petition filed in the county court by the village of Elmwood Park set forth the existence of a bond issue based upon a special assessment under the Local Improvement Act. Assessments levied and to be collected, with interest thereon, amounted to over $345,000, and outstanding bond installments, with interest amounted to over $430,000. The net balance in this particular improvement fund was a little over $50,000. The petition prayed for an extension of unpaid assessments, a refunding and cancellation of the outstanding securities, and that uncollected assessments, and interest thereon, be refunded by dividing the amounts due into fifteen annual installments bearing 6 per cent. interest per annum. On April 6, 1935, the court held the petition to be in proper form and in all respects legal and sufficient. A hearing thereon was set for April 23, and the clerk was ordered to post and publish the necessary notices in compliance with the requirements of section 86a. At least ten days before the hearing the clerk caused a notice to be published once in a secular newspaper of general circulation in the county, and posted a notice in not less than five places throughout the county. It is admitted by all concerned that the clerk fully complied with the provisions of the section governing the giving of notice.

Appellant Beck entered her special appearance and contended the court lacked jurisdiction of the subject-matter because the notice required by statute was not given to her. Her motion for dismissal of the action for want of jurisdiction was denied. Section 86a states, ‘as to names and notice, the procedure shall be in form in general as provided by statute for an original levy of a special assessment,’ and the procedure shall be substantially as that provided by statute for an original special assessment proceeding. She argues that this language necessarily brings section 86a within the provisions of sections 41 and 44 of the Local Improvement Act (Smith-Hurd Ann. St. c. 24, §§ 742, 746), in respect to the mailing, posting, and publication of notices. If her contention is correct, it would be necessary, under section 41, for the clerk to mail notices fifteen days prior to the application for the confirmation of the proceeding, and section 44 would also require him to post notices in at least four public places within the village at least fifteen days before confirmation was sought. Publication would also be required once a week for two successive weeks in a newspaper published in the village.

The primary legislative intent in section 86a was to provide the legal means by which a municipality could refund local improvement bonds and interest thereon. Mere reading of the section demonstrates that the original proceeding wherein the assessment was confirmed is not to be disturbed, except to extend the time of payment and to refund the bonds outstanding. Under section 86a no questions as to reasonableness, amount of assessments, and the ratio of benefits to public and private property are involved. The property owner who has paid in advance all of his assessments under the provisions of section 42 of the Local Improvement Act (Smith-Hurd Ann. St. c. 24, § 743) is not a party to the proceeding under section 86a. The conditions calling for the application of sections 41 and 44 and those calling for the application of the requirements of section 86a bear no relation to each other, and the general languageof section 86a concerning procedure and form consequently does not support the contention of appellant Beck. In support of this point she cites People v. Blocklinger, 344 Ill. 447, 176 N. E. 749;People v. Sargent, 252 Ill. 104, 96 N. E. 847;Yaggy v. City of Chicago, 194 Ill. 88, 62 N. E. 316, and Phillips v. People, 218 Ill. 450, 75 N. E. 1016. These cases are authority for the general proposition that where the statutes specifically prescribe the means whereby jurisdiction is to be obtained over subject-matter and persons, the means prescribed must be strictly followed. That rule was observed by the county clerk in the present proceeding.

Many years elapsed between the enactment of the Local Improvement Act and the addition of section 86a thereto. The latter was passed by the Legislature to relieve municipalities financially distressed during the recent era of bank failures. The notice provided in section 86a is similar in nature to the notice provided in section 84 of the same act. Smith-Hurd Ann. St. c. 24, § 790. The legality and sufficiency of the notice prescribed in section 84 has been approved by this court in People v. Cohen, 219 Ill. 200, 76 N. E. 388, and Wilmette State Bank v. City of Des Plaines, 349 Ill. 106, 181 N. E. 696. The object of the Legislature in enacting section 86a as an amendment to the Local Improvement Act has not escaped our attention, and where its language is susceptible of more than one construction we will carry out the intent of the Legislature rather than defeat it. People v. Shader, 326 Ill. 145, 157 N. E. 225;Zurich General Accident & Liability Ins. Co. v. Industrial Commission, 331 Ill. 576, 163 N. E. 466. The positive requirements of a statute contained in any particular section or paragraph will not be ignored, but will be enforced unless a reasonable construction of the whole act or section under consideration requires otherwise. Patterson Pure Food Pie Co. v. Industrial Commission, 335 Ill. 476, 167 N. E. 86. The provisions of section 86a are easily reconciled with the remainder of the Local Improvement Act, and the county court did not err in denying the motion of appellant Beck to dismiss the petition for want of jurisdiction.

The constitutionality of section 86a is questioned by appellant Hoehamer from different angles. She complains that the publication and posting of notice requirements allow the same to be done anywhere in Cook county and do not restrain such acts within the bounds of the municipality. This, she states, is a violation of the ‘due process' provision of the Constitution. Article 2, § 2. She cites two cases, People v. Lavendowski, 329 Ill. 233, 160 N. E. 582, and People v. Gale, 339 Ill. 162, 171 N. E. 186, in support of her argument. We do not recant what was said in those two cases, for neither of them defines the kind of and sufficiency of notice that would comply with ‘due process' requirements. The constitutional validity of notices given under the Local Improvement Act have been passed upon by this court at various times. A statutory notice to a property owner which enables him to appear before the properly constituted tribunal where he will be heard with reference to an assessment prior to it becoming a charge upon his property is sufficient notice. Citizens' Savings Bank & Trust Co. v. City of Chicago, 215 Ill. 174, 74 N. E. 115. As an assessment judgment does not impose a personal liability, due process of law does not require the giving of personal notice to the property owner. The Legislature may say that constructive notice is appropriate. Gage v. City of Chicago, 225 Ill. 218, 80 N. E. 127;Haugan v. City of Chicago, 259 Ill. 249, 102 N. E. 185;McChesney v. City of Chicago, 226 Ill. 238, 80 N. E. 770. It is evident that the notice requirements of section 86a were patterned after those of section 84 of the same act. The requirements of section 84 were held to comply with the due process clause of the Constitution in City of Chicago v. Cohn, 326 Ill. 372, 158 N. E. 118, 120, 55 A. L. R. 196. We there said: ‘An orderly proceeding in which a person is served with notice, actual or constructive, and has an opportunity to be heard and to protect and enforce his rights before a court having power to hear and determine the cause, is due process of law.’ In Wilmette State Bank v. City of Des Plaines, supra, we held that the notice called for in section 84, if published and posted in accordance with the requirements, was sufficient to give the court jurisdiction over the subject-matter and the parties. No citations in point are given by appellant Hoehamer in support of her assertion, and her argument is obviously without merit.

Section 14 of article 2 of the Constitution is invoked upon the theory that section 86a impairs the obligation of a contract. Appellant Hoehamer indulges in the assumption that the assessment judgment against her property embodied an agreement between her and the municipality that she was to pay the determined installments as they fell due, and that the change in maturity dates of the various installments constituted a new agreement. The confirmation of the assessment constituted a judgment against the property of said appellant, as it operated against all of the property benefited by the improvement even though some of the property owners may have fought the improvement from its inception. No argument is needed to show that the essential elements which go to make a contract are lacking in a proceeding under the Local Improvement Act. A chancery decree or...