Jones v. Town of Lake View

• Decision Date: 31 March 1894
• Citation: 151 Ill. 663,38 N.E. 688
• Parties: JONES v. TOWN OF LAKE VIEW.
• Court: Illinois Supreme Court

151 Ill. 663

38 N.E. 688

JONES

v.TOWN OF LAKE VIEW.¹

Supreme Court of Illinois.

March 31, 1894.²

Appeal from Cook county court; Frank Scales, Judge.

Petition of the town of Lake View for confirmation of a special assessment. J. M. W. Jones and others filed objections, which were overruled, and judgment of confirmation entered. Objectors appeal. Affirmed.F. W. Becker, for appellant.

Wilson, Moore & McIlvaine, for appellee.

On the 28th of April, 1890, the commissioners of Lincoln Park passed and entered an order of record that a driveway be established, opened, and constructed along the shore of Lake Michigan, in the town of Lake View, Cook county, Ill., from Lincoln Park, at the south line of Belmont avenue, in said town, to a connection with Byron street, as opened, and particularly describing the location, width, etc., of such driveway, and providing in detail for material to be used and mode of constructing the same. And it was further ordered that the cost of said improvement, etc., be raised by special assessment, to be levied upon the property to be benefited thereby, in accordance with the provisions of article 9 of the general cities and villages act. And, further, that application be made to the supervisor and assessor of the town of Lake View (there being, as recited in said order, no board of trustees in said town) for leave to establish, open, and construct said driveway, and for authority to commence and prosecute proceedings, in behalf of said town, for making said improvement, in accordance with law. On the 7th of May, 1890, said commissioners made application in writing, to which was attached said order, etc., to the supervisor and assessor of the town of Lake View, setting forth the adoption and entry of record of said order, and applying for leave to make the proposed improvement, and asking that said supervisor and assessor approve of said improvement, and give authority in writing for the making thereof, in accordance with the law. On the same day, said supervisor and assessor, at a meeting of the supervisor and assessor of the town of Lake View, as corporate authorities in that behalf, made and entered an order of record, approving of said improvement, and giving authority to the commissioners of Lincoln Park to make the same, in accordance with the ninth article of the cities and villages act, the cost, etc., to be defrayed by special assessment upon property to be benefited thereby, according to law. This order of approval, and consent of the supervisor and assessor, sets forth the application of the commissioners, and their order before mentioned, in full. At a meeting of the supervisor and assessor of the town of Lake View, corporate authorities in that behalf, held on the 18th of March, 1891, an order was made and entered of record in which, after reciting the previous application to, and order of, the supervisor and assessor approving and authorizing the opening, establishing, and constructing of said driveway; and that, since the making of such order, condemnation proceedings have been carried on for the purpose of determining the amount to be awarded for the property to be taken or damaged for said improvement; and that said commissioners of Lincoln Park have now applied to said supervisor and assessor, corporate authorities aforesaid, to cause an estimate to be made of cost of the opening and establishing of said improvement, in accordance with the description thereof contained in the order and application of said commissioners for leave to make the same, including the amount to be paid, as just compensation, for private property to be taken or damaged therefor,-it was ordered that F. O. Parker, H. W. Taylor, and Henry Mehrle be and are hereby appointed commissioners to make an estimate of the cost of making and constructing said improvement as described, etc., including labor and material and all other expenses attending the same, together with the amount to be found as compensation for private property to be taken or damaged for said improvement, and the cost of making and levying the assessment. On the 17th of March, 1891, the commissioners of Lincoln Park made and entered of record an order which, after reciting the precedent steps taken, made a like appointment of the same persons for the same purpose. Afterwards, March 23, 1891, commissioners reported, estimating the total cost of the improvement at $332,503.15. And on the 25th day of March, 1891, at a meeting of the supervisor and assessor aforesaid, ‘corporate authorities of the town of Lake View in that behalf,’ held on the 25th of March, 1891, an order was made and entered of record, approving said report, and authorizing the commissioners of Lincoln Park to cause a petition to be filed in the county court of Cook county for the appointment of commissioners to make assessment of the same upon the property benefited, etc., which was done. Commissioners were duly appointed by the court, who returned an assessment roll, finding the proportion of the total cost of the improvement which would be of benefit to the property, the whole thereof, $332,503.15, and the proportion of the total estimated cost of the improvement which would be of benefit to the public, and assessed to the town of Lake View, nothing; and apportioning said estimated cost upon the various lots, blocks, and tracts of land benefited, etc. Upon the return of the assessment roll, objections were filed by various of the owners of land assessed, and it appearing that certain lots had been assessed together, when they should have been assessed separately, the court recommitted the assessment, as to such lots, to said commissioners, to recast the assessment in respect of said lots. All objections as to assessment upon other lots, blocks, and tracts of land ‘not triable by jury’ were severally overruled. And thereupon a jury was impaneled to try the issue of fact made by the objectors,-that the several lots of objectors were assessed more than the same were benefited, or more than their proportionate share of the cost of said improvement. The jury returned a verdict finding that the lots of objectors were not assessed more than they were benefited by said improvement, or more than their proportionate share of the cost thereof. And, the said commissioners having recast said assessment roll as to the lots in respect of which it was recommitted to them (none of which was included within the lots objected for), and the court having approved of said verdict rendered the judgment confirming the assessment as returned by said commissioners. And certain of the objectors appeal.

SHOPE, J. (after stating the facts).

It is insisted that the act of the legislature, in force July 1, 1889, under which this proceeding was had, is unconstitutional, for the reason that it contravenes section 13, art. 4, of the constitution, providing: ‘No act hereinafter passed shall embrace more than one subject, and that shall be expressed in the title.’ And, second, it is void because the act of 1874, creating section 20, of which the latter act is amendatory, was void under the foregoing provision of the constitution, for the reason that an entirely new and independent subject, not embraced in the original act, was introduced by section 20; that said section, providing for the establishing, opening, and constructing a driveway from the park, by special assessment, introduced a new substantive matter, not pertinent to that contained in the original act, or embraced within its title, and that the amendment of 1889, of the void section, was therefore itself void. The title of the act of 1874 is: ‘An act to amend sections 6, 7, and 9 of an act entitled, ‘An act in regard to the completion of public parks and the management thereof, approved June 16, 1871;’ and to add two (2) sections thereto.' The two sections added were 19 and 20. By reference to the original act of 1871, it will be found (section 3) that the supervisor and assessor, ‘corporate authorities of any town in which any such park may be situated,’ are authorized to institute proceedings to condemn lands for park purposes. The following sections provide the course of proceeding. Section 6 provides for a special assessment by the supervisor and assessor ‘upon the lands and lots, within the corporate limits of the town, benefited,’ to pay the probable damages for taking the land, and costs, etc. The act of 1874, after amending sections 6, 7, and 9, adds sections 19 and 20. Section 19 is restrictive of the power of the supervisor and assessor. Section 20 authorizes the commissioners of parks, desiring to open, establish, and construct any driveway from the park under their control, to make application to the board of trustees of the town in which it was proposed to make the same, if there was such board, or, if not, then to the supervisor and assessor of the town, for leave to open, establish, and construct such driveway; and providing that upon approval of the application, etc., by the supervisor and assessor, they should give authority, in writing, for opening, establishing, and constructing the same, in accordance with article 9 of the general law for the incorporation of cities and villages. The supervisor and assessor are ‘declared corporate authorities for the purposes of this section’; and it is expressly provided that ‘when any such driveway shall be established, it shall form a part of such park and be managed and governed as part thereof.’ The title of the act of 1871 is ‘An act in regard to the completion of public parks and the management thereof.’ The amendment of an act ex vi termini implies a change of its provisions upon the same subject-matter to which the original relates. It cannot be seriously questioned that the subject-matter of section 20 falls within the general purposes expressed in the title of the act of 1871. The original act, as we have seen, relates to the acquiring of land for park...