People ex rel. Carofiglio v. Gill

• Decision Date: 09 July 1937
• Docket Number: Gen. No. 39295.
• Citation: 9 N.E.2d 581,291 Ill.App. 143
• Parties: PEOPLE EX REL. CAROFIGLIO ET AL. v. GILL, COUNTY TREASURER.
• Court: United States Appellate Court of Illinois

291 Ill.App. 143

9 N.E.2d 581

PEOPLE EX REL. CAROFIGLIO ET AL.

v.GILL, COUNTY TREASURER.

Gen. No. 39295.

Appellate Court of Illinois, First District, Second Division.

June 29, 1937.

Rehearing Denied July 9, 1937.

Appeal from Superior Court, Cook County; James J. Kelly, Judge.

Mandamus proceedings by the People, on the relation of Maria Carofiglio and others, against Joseph L. Gill, County Treasurer of Cook County. From a judgment awarding a writ of mandamus, defendant appeals.

Reversed and remanded, with directions to dismiss. Thomas J. Courtney, State's Atty., of Chicago (Hayden N. Bell, Jacob Shamberg, William P. Kearney, and Gerald E. Hornidge, Asst. State's Attys., all of Chicago, of counsel), for appellant.

Maloney & Wooster, of Chicago, for appellees.

SCANLAN, Justice.

This is an appeal from a judgment awarding a writ of mandamus against the county treasurer of Cook county, requiring him to pay to plaintiffs the sum of $5,719.56, which was a balance withheld by the treasurer out of moneys deposited with him by the Forest Preserve District to pay a judgment entered in a condemnation cause.

Plaintiffs are the heirs of Vincent Carofiglio and the administrator of his estate. The petition alleges that plaintiffs were entitled to receive an award given in a condemnation proceeding entitled “Forest Preserve District of Cook County v. Carofiglio,” in the superior court of Cook county; that the property involved (owned by Carofiglio in his lifetime) was a subdivided tract of vacant residential property west of the village of Glencoe, in Cook county; that in February, 1929, Carofiglio platted and subdivided the tract for the purpose of placing it upon the market for sale; that on April 19, 1929, an ordinance was passed by the Forest Preserve District of Cook County selecting the tract as a forest preserve site; that to apprise the public that the property was to be taken for forest preserve purposes and was no longer available for residential use, the district published and recorded the ordinance, which was passed to prevent the sale of the property by the owners and to cloud the title to the same; that no steps were taken by the district after the passage of the ordinance until November 19, 1931, when the petition for condemnation was filed; that the proceeding was not brought to trial until October, 1935; that during the latter part of 1933, or during January or February of 1934, the district illegally and wrongfully entered upon the property, by their agents, and dug a ditch through it, which has since been used by the district to provide drainage for property north of the property of petitioners; that the ditch created a barrier to the use of the property; that in the condemnation proceeding a judgment was rendered in favor of plaintiffs for $21,005, on October 11, 1935; that thereafter the district deposited that sum with appellant and the latter paid to plaintiffs $13,027.40 of the same but refused to pay the balance, on the ground that it was withheld for the payment of taxes for the years 1930, 1931, 1932, 1933, 1934, and 1935; that plaintiffs then directed appellant to pay, out of the moneys held by him, the taxes levied for 1930 and eleven-twelfths of the taxes for 1931; that appellant, in obedience to the direction, paid taxes in the amount of $2,153.49, and plaintiffs received a paid tax bill therefor; that appellant still withholds from plaintiffs $5,824.04; “that upon the filing of the said order of condemnation of November 19th, 1931 [petition for condemnation], the * * * District condemned the said land, and that the * * * District had long prior to the said date, appropriated the said land to their own use by the passage of the said ordinance herein referred to, and that the * * * District by the filing of the condemnation suit became liable for taxes levied against the property on and after the filing of the petition of condemnation, and that it became and was the duty of the said Joseph L. Gill to pay to the petitioners all of the said funds.” The petitioners prayed for a writ of mandamus directing appellant to pay to them the $5,824.04. Attached to the petition as an exhibit is an ordinance passed by the district on April 19, 1929, which states that it is desirable and necessary to acquire plaintiffs' property for forest preserve purposes, and authorizes the chief of the real estate department of the district to negotiate with the owners of the property for the purchase by the district of the property at a sum not to exceed $1,200 per acre. The ordinance provides that if the negotiations for purchase fail, then the attorney of the district is instructed to institute proceedings to acquire the property under the eminent domain laws of the state. The answer of appellant admits that plaintiffs are the persons entitled to the award in the condemnation proceedings, but avers that the award is subject to certain limitations; denies that the publication of the ordinance affected the property in any manner; denies that the district failed to prosecute the condemnation proceedings diligently; denies that the district at any time illegally and wrongfully took physical possession of the property in any manner; denies that the district owned the property prior to the condemnation judgment; denies that the filing of the petition to condemn the premises in any manner affected plaintiffs' title to the same or transferred such title to the district; denies that the district, by the filing of the condemnation proceedings, became liable for all general taxes due and outstanding against the premises; denies that the district appropriated the land to its own use by the passage of the ordinance; denies that it was his duty to pay to plaintiffs the amount withheld; denies that he was under any duty to pay any sum or sums to plaintiffs so long as there remained unpaid any general taxes assessed and levied against the premises for the period prior to the date of deposit of the judgment award with him; and avers that it was his duty as county treasurer and as ex officio county collector to deduct said sum on account of the delinquent taxes.

In entering judgment for plaintiffs the trial court excluded the sum of $104.48, which represented the amount of the taxes for the month of December, 1931.

The sole question to determine is: Are the general taxes that became a lien against the property, after the filing of the condemnation petition but before the entry of the condemnation judgment, to be borne by the owners of the property? The trial court answered the question in the negative, basing his ruling upon City of Chicago v. McDonough, 273 Ill.App. 392, recently decided by the first division of this court, wherein it was held that “any liens which attached to the land after the filing of the petition must be borne by the City of Chicago for the use of schools”; that “whether the City will be required to pay the taxes in question, or whether the property will be considered as exempt by virtue of section 3 of article 9 of the Constitution of 1870, and [Smith-Hurd Ill. Stats. c. 120, § 2] section 2, ch. 120 of Cahill's Revised Statutes, obviously is not before us”; that “the general taxes for 1929 and 1930, which became a lien after the petition for condemnation was filed, are not payable out of the compensation awarded.”

The city of Chicage made no effort to have the McDonough Case reviewed by the Supreme Court. Appellant concedes that it sustains the ruling of the trial court, but strenuously contends that the decision is contrary to the ruling of the Supreme Court in ...