McChesney v. City of Chicago
| Decision Date | 10 April 1907 |
| Citation | 80 N.E. 770,226 Ill. 238 |
| Parties | McCHESNEY et al. v. CITY OF CHICAGO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Cook County Court; J. W. Houston, Judge.
Petition by the city of Chicago for the confirmation of a special assessment for the cost of a water supply pipe. From a judgment of confirmation, A. B. McChesney and others, objectors, appeal. Affirmed.
MacChesney & Bradley and F. W. Beeker, for appellants.
Charles H. Mitchell and John M. O'Connor (James Hamilton Lewis, Corp. Counsel, of counsel), for appellee.
The city of Chicago filed its petition in the county court of Cook county for the confirmation of a special assessment to cover the cost of a water supply pipe in Coles avenue. The objections of appellants were overruled, and judgment of confirmation entered. Upon appeal to this court that judgment was reversed (213 Ill. 592, 73 N. E. 368), and the cause remanded. Upon a subsequent hearing in the county court the objections were again overruled, and judgment entered accordingly, to reverse which this second appeal has been prosecuted.
The assessment was payable in one payment, and the ordinance provided that it should draw interest at the rate of 5 per cent. Upon the former appeal we held that provision of the ordinance void. The second judgment of confirmation entered by the county court provided that the assessment should not draw interest. It is insisted by the appellants that the determination of this question upon the former hearing is conclusive of the matter, and res judicata, and it cannot again be raised. An examination of the opinion filed upon the former appeal does not sustain this contention.We held that there was no statutory authority for the city council to require a single installment to bear interest; but we there said that the question of the elimination of that portion of the ordinance with reference to interest would not be considered, for the reason that there were other defects in the ordinance. We have held that an error in providing that a single installment shall draw interest does not defeat the whole assessment, where the levy is explicit and there is nothing in the ordinance to show that there is any necessity for interest, such as would preclude disregarding the interest provisions of the ordinance and sustaining the remainder. Conway v. City of Chicago, 219 Ill. 295, 76 N. E. 384. In the ordinance in question we see no reason why that portion with reference to interest cannot be eliminated, provided the remainder of the ordinance is valid and legal.
It is insisted that the county court was without jurisdiction to enter that part of the judgment which provided that the assessment should not draw interest, for the reason that it was the assumption by the judiciary of legislative authority. That portion of the ordinance with reference to interest was null and void, but the remainder of the ordinance was valid and complete in itself, and the court properly provided in its judgment that the installment should not draw interest. If the judgment had provided for interest, it would have been void, as before held.
It is next insisted that the estimate of the cost of the improvement as made by the engineer contains improper items, which cannot properly be included in a special assessment. The estimate as abstracted is not complete. It merely shows the general statement at the head, and does not pretend to give the various items composing it. If appellants sought to raise any question as to the estimate, it was their duty to set it out in full in their abstract, so we might examine the various items which they claim were illegal. We deem it sufficient to say that the itemized estimate as it appears in the record does not include any illegal items.
It is next insisted that the local improvement act is unconstitutional, in that it does not provide for notice of the proceedings to the owners of the property assessed. In the case of Citizens' Savings Bank & Trust Co. v. City of Chicago, 215...
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