People ex rel. City of Park Ridge v. Hollis

• Decision Date: 28 October 1966
• Docket Number: No. 39834,39834
• Parties: The PEOPLE ex rel. the CITY OF PARK RIDGE et al., Appellees, v. Raymond HOLLIS et al., Appellants.
• Court: Illinois Supreme Court

Page 245

221 N.E.2d 245

35 Ill.2d 489

The PEOPLE ex rel. the CITY OF PARK RIDGE et al., Appellees, v. Raymond HOLLIS et al., Appellants.

No. 39834.

Supreme Court of Illinois.

Oct. 28, 1966.

DiLeonardi & Hofert, Des Plaines (Edward C. Hofert, Des Plaines, of counsel), for appellants.

Ancel, Stonesifer, Glink & Levin, Chicago (Louis Ancel and Kenneth O. Stonesifer, Chicago, of counsel), for appellees.

HERSHEY, Justice.

This is a declaratory judgment proceeding instituted by the city of Park Ridge, its treasurer and certain property owners in Park Ridge to determine the proper disposition of excess special assessment funds as to which a rebate had been declared, pursuant to ordinance No. 64--41 of the City of Park Ridge and section 9--2--138 of the Illinois linois Municipal Code. (Ill.Rev.Stat.1963, chap. 24, par. 9--2--138.) The circuit court of Cook County entered a decree finding that both the city ordinance and section 9--2--138 were constitutional and directed distribution of the surplus funds as provided by the ordinance and statute to the plaintiffs who were owners of record of the assessed property on the date the rebate was declared. Defendants, Raymond Hollis and Mary Hollis, who owned the property in 1957 and paid the entire special assessment in 1957, but sold the real estate prior to 1964 when the rebate was declared, have appealed to this court contending that the ordinance and statute as construed by the trial court deprived them of property without due process of law.

In 1957, defendants, Raymond Hollis and Mary Hollis, owned certain real estate in Park Ridge as to which they paid a special assessment that year in the amount of $828.60 plus interest for the widening, curbing, grading, paving and improving of North Aldine Avenue. In 1958, subsequent to the payment of the special assessment, defendants sold and conveyed the real estate to the plaintiffs, William L. Gorman and Vivien J. Gorman. There was no agreement between the parties as to who would be entitled to a special assessment rebate, if one should later be declared.

In October, 1964, it was determined that there was a surplus of special assessment funds collected for the improvement of North Aldine Avenue, and on October 20, 1964, the city of Park Ridge adopted ordinance No. 64--41 which provided for a Pro rata rebate of the surplus funds. Section 2 of the ordinance provided: 'That said rebate shall be paid to the owners of record of each such lot, block, tract or parcel as of this date, being the time of the declaration of the rebate.' The ordinance used substantially the same language as that of the Illinois Municipal Code which provides that surplus special assessment funds 'shall be paid to the owner of record of each such lot, block, tract, or parcel at the time of the declaration of the rebate.' Ill.Rev.Stat.1963, chap. 24, par. 9--2--138.

The defendants contend that at the time they paid the special assessment and prior to the time they sold the property, the local improvement article of the Revised Cities and Villages Act provided that any rebate of surplus special assessments was to be made to the 'persons entitled thereto' (Ill.Rev.Stat.1955, chap. 24, par. 84--93); that since they paid the special assessment, they were the persons 'entitled to' the rebate; that in 1963, subsequent to the sale of the property, the statute was amended to provide that the rebate should be paid to the owners of the property at the time the rebate was declared; and that to apply the statute as amended in 1963 in the instant case would deprive them of property without due process of law.

Both parties have cited cases from other jurisdictions which deal with the question of who is entitled to a refund of a special assessment under certain refunding provisions in those States. (City of Grand Rapids v. Iosco Land Co., 273 Mich. 613, 263 N.W. 753, 105 A.L.R. 695; Neer v. City of Salem, 77 Or. 42, 149 P. 476; Moffitt v. City of Salem, 81 Or. 686, 160 P. 1152.) These cases each involve the construction of particular statutory provisions which differ from the statute we are here concerned with, and for that reason these cases are not particularly relevant to the determination of this case. Rather, we must look to the local improvements article of the Municipal Code to resolve the questions raised in this case.

It is clear that under section 9--2--138 as it existed after the 1963 amendment, the rebate should be paid to plaintiffs. However, even if it be assumed that the pre-1963 provision of the local improvements article of the Revised Cities and Villages Act above cited applies, we do not agree with defendants' basic premise that they were the persons 'entitled to' the rebate under that provision. Nor do we agree that defendants would be deprived of property without due process of law if the rebate were paid to plaintiffs.

The nature of special assessments has been considered...