Newman v. City of Chicago

• Decision Date: 29 October 1894
• Citation: 153 Ill. 469,38 N.E. 1053
• Parties: NEWMAN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

153 Ill. 469

38 N.E. 1053

NEWMAN et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from superior court, Cook county; Jonas Hutchinson, Judge.

Petition by the city of Chicago for confirmation of a special assessment. Jay C. Newman and others filed objections, which were overruled, and judgment of confirmation was entered. Objectors appeal. Affirmed.

R. M. Wing, for appellants.

Harry Rubens, for appellee.

MAGRUDER, J.

This is an appeal from a judgment of the superior court of Cook county confirming a special assessment in a supplemental proceeding under section 53, art. 9, of the cities and villages act, instituted for the purpose of raising the amount necessary to pay the compensation theretofore awarded for property taken by condemnation for opening Sixty-Fifth Court between Stewart avenue and Honore street. The supplemental petition is not in the record, and, although its omission is not referred to by counsel on either side, we allude to it for the purpose of deprecating the practice of making up the records in this class of cases without inserting the supplemental petition. Ayer v. City of Chicago, 149 Ill. 262, 37 N. E. 57;Guild v. City of Chicago, 82 Ill. 472. Section 53 not only provides for filing said petition and prescribes the scope of its prayer, but also states that the court shall have power to appoint the three commissioners ‘after’ said petition shall have been filed, showing that the petition lies at the foundation of the supplemental proceeding.

The main objection discussed by counsel for appellants is that the land embraced in the petition for condemnation had been dedicated to the public for a highway or street prior to the institution of the condemnation proceeding. In the first place, it is claimed that the question of a prior dedication should have been submitted to a jury for determination, and that the court erred in overruling a motion made by appellants for such submission, and in hearing evidence and deciding the question without a jury. In the recent case of Gage v. City of Chicago, 146 Ill. 499, 34 N. E. 1034, we decided that an objection raising that question does not present an issue which the property owners are entitled to have submitted to a jury, and we see no good reason for not adhering to the decision. Here, as in the Gage Case, supra, the trial court permitted the parties to introduce a large mass of evidence upon the question of such prior dedication. This evidence was somewhat conflicting, some of it showing circumstances which tended to establish that there had been a dedication and some of it showing circumstances which tended to negative the fact of a dedication. After a careful examination of all the testimony, we are not prepared to say that the trial judge did not reach a correct conclusion in finding that there had been no dedication, if, indeed, he was bound to consider the evidence at all which was introduced upon that subject.

The appellee has assigned a cross error to the effect that the court below erred in permitting proof to be heard on the question of dedication. We are inclined to think that the cross error is well assigned. The supplemental proceeding provided for in section 53 is collateralto the condemnation proceeding. The condemnation judgment is final and conclusive, as to the parties thereto, until it is reversed or vacated. Hence, the questions properly arising in the condemnation proceeding cannot be relitigated in the supplemental proceeding, the object of the latter being merely to raise funds to pay the judgment of condemnation already entered. Goodwillie v. City of Lake View, 137 Ill. 51, 27 N. E. 15; Gage v. City of Chicago, supra. The objection that there was a former dedication amounting to the assertion that the property condemned was not private property, but belonged to the city or public, the question whether the property condemned was private property or not was an issue involved in the condemnation proceeding. The city or village has power to condemn private property, only, under article 9, and not public property. Section 4, art. 9, authorized the petition for condemnation to be filed when an ordinance is passed for the making of a local improvement, ‘the making of which will require that private property be taken or damaged for public use’; and by the terms of the same section the prayer of the petition must be that ‘the just compensation to be made for private property to be taken or damaged for the improvement * * * shall be ascertained by a jury.’ Section 14, art. 9, provides, that ‘any final judgment * * * rendered * * * upon any finding * * * of any jury or jurors shall be a lawful and sufficient condemnation of the land or property to be taken,’ etc. 1 Starr & C. Ann. St. pp. 488, 491. It would seem to follow that the judgment in condemnation, not being subject to collateral attack in the supplemental proceeding, must be regarded as a determination of the question sought to be raised by the objection now under consideration. It is not made to appear that the court rendering the judgment did not have jurisdiction as to the subject-matter, and over the proper parties.

It is said that the ordinance providing for the opening of the street is invalid because it does not provide that, in case the cost of the improvement exceeds the amount which can be assessed as special benefit against the property, the balance of the cost shall be raised by general taxation. In other words, it is claimed that the ordinance makes only partial provision for the payment of the cost of the improvement. The second section of the ordinance is as follows: ‘Sec. 2. That the cost and expense of said improvement shall be defrayed by a special assessment upon the property specially benefitted thereby, to the extent of such special benefits, such special assessment to be made and levied in accordance with the provisions of article nine (9) of an act of the general assembly of the state of Illinois entitled ‘An act to provide for the incorporation of cities and villages,’ approved April 10, A. D. 1872.' The total cost of the improvement was $15,334.35, of which, as shown by the report of the commissioners, $15,032 was assessed against property specially benefited, and $302.35 against the city. It is said that the ordinance contains no provision which covers, or authorizes the payment of, the sum of $302.35. Usually, ordinances of this character contain a clause that the amount, if any there shall be, over and above the special benefits to the property, shall be paid for by general taxation. Watson v. City of Chicago, 115 Ill. 78, 3 N. E. 430. Is such a clause necessary to the validity of the ordinance? Section 2, art. 9, provides that ‘when any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both.’ We have held that one improvement cannot be made by both special assessment and special taxation, yet that either of those methods may be combined with general taxation. Kuehner v. City of Freeport, 143 Ill. 92, 32 N. E. 372. But, while this is so, section 2 certainly authorizes a local improvement to be made by special assessment...