Linck v. City of Litchfield

• Decision Date: 11 May 1892
• Citation: 141 Ill. 469,31 N.E. 123
• Parties: LINCK v. CITY OF LITCHFIELD.
• Court: Illinois Supreme Court

141 Ill. 469

31 N.E. 123

LINCK

v.CITY OF LITCHFIELD.¹

Supreme Court of Illinois.

May 11, 1892.

Error to Montgomery county court; LOUIS ALLEN, Judge.

Proceeding for the assessment and collection of a special tax for a local improvement in the city of Litchfield. Judgment was obtained against delinquent lots of Christian Linck, and he brings error. Affirmed.

Lane & Cooper, for plaintiff in error.

Benj. McWilliams, for defendant in error.

BAILEY, J.

The writ of error in this case brings up for review the proceedings of the county court of Montgomery county, in relation to the assessment and collection of a special tax for a local improvement, consisting of grading, paving, and otherwise improving a portion of Ryder street, in the city of Litchfield. It appears that at the April term, 1890, of said court, said city filed its petition, representing, in substance, that the petitioner was a municipal corporation existing under a special charter granted by the legislature; that on the 10th day of July, 1884, the city council of said city passed an ordinance adopting article 9 of the general law in relation to the incorporation of cities and villages; that on the 28th day of February, 1890, said city council passed on ordinance providing for making said local improvement, and also providing that the cost thereof, not including street and alley intersections, be paid by special taxation on the lots, parts of lots, and parcels of land abutting upon the part of said street to be improved, in proportion to the frontage thereof. Certified copies of said ordinances were appended to said petition as exhibits. By the last-named ordinance, three personswere appointed a committee to estimate separately the cost of that part of said improvement to be paid by special taxation, and the cost of the street and alley intersections, and required the city attorney, on the filing of the report of said committee and the approval thereof by the city council, to file the proper petition in said county court for proceedings to assess that portion of the cost of said improvement required to be raised by special taxation, according to the provisions of the statute in such case made and provided. Said ordinance also provided that said special tax should be divided into five equal installments, of which the first should be payable upon the confirmation of said special tax, and the other four installments yearly thereafter, with interest. The petition further alleged that, on the 10th day of March, 1890, said committee reported its estimate of the cost of that portion of said improvement to be raised by special taxation at $3,379.20, and of the cost of levying and collecting said assessment at $105.60, and that on the same day said report was duly approved by said city council. The petition prayed that the cost of said improvement might be assessed in the manner provided by law. On the hearing of said petition, said court found the facts as therein alleged, and appointed three commissioners to levy said special tax in the manner prescribed by the ordinance. Said commissioners thereupon took, subscribed, and filed their official oath, said oath being taken April 17, 1890, before J. E. Paden, a notary public. On the 20th day of said month they filed in said court their assessment roll, and at the May term, 1890, of said court, proof of notice of the filing of said assessment roll, and that the hearing of objections thereto would be heard at said term, was filed. Said proof consisted of the certificate of the publishers of a daily newspaper, printed and published at Litchfield, of the publication of such notice for the time and in the manner prescribed by law; and the affidavit of one of said commissioners showing the posting up of notices in certain public places in Litchfield, and also stating that he, said commissioner, ‘on the 29th day of April, 1890, sent by the United States mail, properly directed and lawfully stamped, notices as required by law, to the owners whose premises have been assessed, and whose names and places of residence are known to the commissioners, of the amount of the assessment upon their respective premises for said improvement, and stating the fact, in said notice, that the assessment roll would be returned to the May term, A. D. 1890, of the Montgomery county court, as required by law; that said notices were inclosed in envelopes, properly directed, and deposited in the post office in the city of Litchfield, Montgomery county, Ill.’ At said May term of said county court the special tax roll returned by said commissioners came on to be heard on the application and motion of said city of Litchfield for the confirmation of said special tax, and, none of the owners of the premises on which said special tax was levied appearing or making objection, it was ordered that said special tax roll be, and the same was, in all respects confirmed, and judgment by default was entered against the lots, blocks, tracts, and parcels of land severally and respectively, as set forth in said special tax roll, for the full amount thereon charged against each of said lots, blocks, tracts, and parcels of land, and the clerk of said court was ordered to certify said special tax roll, together with said judgment, to the officers of said city authorized to collect said special tax. The collector of special taxes afterwards returned as delinquent certain lots and parts of lots taxed in the name of Christian Linck, and on application to said county court, at its May term, 1891, for judgment against said lots and parts of lots for said special tax and costs, etc., judgment was rendered against each of said lots and parts of lots for the amount of said special tax, interest, costs, etc., then due thereon, and said lots and parts of lots, or so much of each as should be sufficient to pay the amounts of said judgments, were ordered to be sold, in the manner prescribed by law. To obtain a review and reversal of said proceedings in said county court, said Christian Linck has brought the record thereof to this court by writ of error, and assigned various errors, which will now be considered.

The first error assigned calls in question the validity of the ordinance by which the city council of the city of Litchfield adopted article 9 of the general statute in relation to the incorporation of cities and villages. Rev. St. 1891, c. 24. It is now claimed that said ordinance was not in strict conformity with the provisions of section 54 of the said article, the contention being that said section is itself unconstitutional, in that it authorizes the city council to adopt said article without a vote of the peopel of the city. Said section 54, and the statute of which it forms a part, have now been in force almost 20 years, and during that period most of the cities and villages in the state have adopted said article 9, by passing ordinances to that effect, as provided by said section 54. The Validity of such adoption has been uniformly conceded and acted upon, and it has been recognized by this court, either directly or incidentally, in numerous decisions. If, then, the question were originally a doubtful one,-a thing which we are by no means prepared to concede,-it has now become so thoroughly settled adversely to the present contention that it is no longer open to discussion. In People v. Pierce, 90 Ill. 85, it appeared that the city of Chicago had adopted said article 9 by ordinance, and it was held, in substance, that said article thereby became a part of the charter of said city. In Martin v. People, 87 Ill. 524, it appeared that said article had been in like manner adopted by the trustees of the town of Lake, and it was held that said article thereby became applicable to said town. Similar recognitions of the validity of ordinances adopted in pursuance of the provisions of said section...