People ex rel. Chicago Title & Trust Co. v. Vill. of Glencoe
| Decision Date | 06 December 1939 |
| Docket Number | No. 24988.,24988. |
| Citation | 372 Ill. 280,23 N.E.2d 697 |
| Parties | PEOPLE ex rel. CHICAGO TITLE & TRUST CO. v. VILLAGE OF GLENCOE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by the People, on the relation of the Chicago Title & Trust Company, against the Village of Glencoe and others for a writ of mandamus to compel the Village of Glencoe to pay the sum of $7,165.11, claimed to be due on a condemnation judgment entered in a special assessment proceeding. Judgment for plaintiff, and defendants appeal.
Affirmed.Appeal from Superior Court, Cook County; D. S. McKinlay, judge.
Maurice G. Shanberg, of Chicago, for appellants.
Concannon, Dillon, Bostelman & Snook, of Chicago (William H. Dillon and R. F. Bostelman, both of Chicago, of counsel), for appellee.
The Chicago Title and Trust Company, as trustee, appellee, filed a petition for a writ of mandamus in the superior court of Cook county, to compel the village of Glencoe to pay the sum of $7,165.11, balance claimed to be due on a condemnation judgment of $8,910, entered in a special assessment proceeding. The superior court issued the writ, holding section 32 of the Local Improvement act, Ill.Rev.Stat. 1937, chap. 24, § 731, made the village liable to pay such judgment whether the assessment levied in the proceedings be paid or not, and ordered the appellants to pay such judgment. It also held that section 32 did not violate the State or Federal constitutions, and since the constitutionality of this section is attacked, the appeal comes directly to this court.
The village of Glencoe, by an ordinance adopted in January, 1928, provided for the construction of a concrete pavement over a strip of land owned by appellee. The cost of acquiring the property and making the improvement was to be paid by special assessment. In a condemnation proceeding in the county court of Cook county the court fixed the compensation for the land of appellee taken at $8,910, and entered judgment for that amount. In June, 1930, the village elected to take the property, entered upon it and constructed the improvement. A large part of the assessment has not been collected and appellee alleged, and the court found, there was $7,165.11 of the condemnation judgment due and unpaid. The record also reveals the appellee barricaded the portion of the street built upon its property and the public has been prevented from using it, but no question of title or right of possession of property is involved in this suit.
Section 32 of the Local Improvement act, Ill.Rev.Stat. 1937, chap. 24, § 731, after making provision for a city or village to elect whether it will dismiss a proceeding in which a condemnation verdict has been rendered or have a judgment entered thereon provides: ‘* * * if it shall elect to enter such judgment, it shall become thereby bound and liable to pay the amount thereof, whether such assessment be collected or not, and such judgment of condemnation shall not be conditional,’ etc.
The Local Improvement act was enacted under authority of section 9 of article 9 of the constitution, Smith-Hurd Stats., which granted the General Assembly power to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. The Local Improvement act of 1897 has repeatedly been held valid. Givins v. City of Chicago, 188 Ill. 348, 58 N.E. 912;Gage v. City of Chicago, 225 Ill. 135, 80 N.E. 86;City of Ottawa v. Colwell, 260 Ill. 548, 103 N.E. 573;Village of Broadview v. Dianish, 335 Ill. 299, 167 N.E. 106.
It is claimed that a construction of section 32 requiring the city to pay a condemnation judgment out of corporate funds in case the assessment is not sufficient, denies to the taxpayer due process of law because many of them would not be directly benefited by the improvement.
It has been held that general taxation and special assessment may be combined in making a local improvement. Kuehner v. City of Ereeport, 143 Ill. 92, 32 N.E. 372,17 L.R.A. 774;Morgan Park v. Wiswall, 155 Ill. 262, 40 N.E. 611;Newman v. City of Chicago, 153 Ill. 469, 38 N.E. 1053. Since the constitution authorizes cities to provide for the payment of such improvements by combination of special assessment and general taxation, it can be no violation of the constitution that a city becomes conditionally liable to pay a debt by general taxation, which it might be required directly, by ordinance, to pay. The statute is as much a part of the ordinance as though written into it. Village of Bradley v. New York Central Railroad Co., 277 Ill. 608, 115 N.E. 640. Under the statute the city becomes liable to pay if the land is taken but is given the right, for a period of ninety days, to elect whether it will have the proceeding dismissed or go ahead with the improvement. Ill.Rev.Stat. 1937, chap. 24, § 731. It is only when it so elects that it becomes liable to the property owner, regardless of whether the assessment is collected or not. The Local Improvement act has been in force for over forty years and the liability of the city to pay under this section has been before this court many times without its validity being questioned. It is our conclusion that it does not violate the constitution of Illinois.
It is further claimed that the city is not liable to pay the judgment out of funds other than those raised in the special assessment proceeding. The holding of this court is adverse to this contention. City of Chicago v. McCluer, 339 Ill. 610, 171 N.E. 737;Turk v. City of Chicago, 352 Ill. 171, 185 N.E. 258. The cases of City of Chicago v. Thomasson, 259 Ill. 322, 102 N.E. 748, and City of Chicago v. Roth, 334 Ill. 132, 165 N.E. 627, cited by appellants, merely hold that the owner, by voluntarily delivering possession of land to the city, waives certain rights of requiring payment in advance before the city may enter, but also hold that if there be nonpayment of the award for the property taken, the city may be compelled by mandamus or otherwise to satisfy the judgment. It is said, however, that there are no unappropriated...
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...of garbage. The authority to levy the additional tax is the object and purpose of the act.’ In People ex rel. Chicago Title & Trust Co. v. Village of Glencoe, 372 Ill. 280, 23 N.E.2d 697, 699, in passing upon the right of the city to use for corporate purposes excess money raised by the gar......
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...That is a mere conclusion of the pleader. Whether that is true must depend on facts which are not alleged here. In People v. Village of Glencoe, 372 Ill. 280, 23 N.E.2d 697, it was contended mandamus would not lie to compel payment of a condemnation judgment because all of the money in the ......
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...include in the general appropriation ordinance items of expense paid from special funds. They cite Prople ex rel. Chicago Title & Trust Co. v. Village of Glencoe, 372 Ill. 280, 23 N.E.2d 697. In that case a judgment in a condemnation proceeding was satisfied out of the special fund created ......