People ex rel. Keeney v. City of Chicago

• Decision Date: 29 October 1894
• Citation: People ex rel. Keeney v. City of Chicago , 152 Ill. 546, 38 N.E. 744 (Ill. 1894)
• Parties: PEOPLE ex rel. KEENEY v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

152 Ill. 546

38 N.E. 744

PEOPLE ex rel. KEENEY

v.CITY OF CHICAGO et al.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from citcuit court, Cook county; O. H. Horton, Judge.

Mandamus by the people of the state of Illinois on the relation of James F. Keeney against the city of Chicago and J. Samuel Sheahan, superintendent of assessments.Defendants obtained judgment.Plaintiff appeals.Affirmed.

Wilson, Moore & McIlvaine, for appellant.

Adolph Kraus and Harry Rubens, for appellees.

BAKER, J.

This is a petition for a writ of mandamus that was filed in the circuit court of Cook county on the relation of James F. Keeney and against the city of Chicago and J. Samuel Sheahan, superintendent of assessments in said city.Said court overruled a demurrer to the answer of the defendants, and the petitioner abiding by his demurrer, dismissed the petition, with judgment for costs against the petitioner.

It is alleged in the petition that the petitioner is a property owner, whose property was assessed for the improvement of Ohio street from Clark street to St. Clair street; that the ordinance authorizing the improvement provided that the assessment should be divided into installments, pursuant to the act approved April 29, 1887; that such assessment was duly made and levied; that the work was completed, and the contractor paid by money and vouchers pursuant to the provisions of said act; that after the full payment of the contract for the work done, and the payment of all costs and expenses, there remained the total sum of $873.57, over and above the cost, which sum ought to have been credited, pursuant to the statute, one-fourth upon each of the four deferred installments of said assessments; that, instead of doing so, the city of Chicago and the said Sheahan, who was the superintendent of assessments in said city, and whose duty it was to compute and credit the rebates, insisted upon retaining a portion of said excess, claiming the right, notwithstanding the provisions of said statute, to retain such portion so as to enable the city to pay the vouchers issued to the contractors for such work, so that such contractors should receive payment of such vouchers in full, principal and interest, according to the terms thereof, notwithstanding the loss of the interest upon money collected upon said installments while the same remained in the hands of the county collector, and also the percentage claimed by the said collector for the collection thereof; that the total assessment levied by the commissioners was $32,957.75, of which $29,410.18 was assessed upon private property, and the remainder charged as public benefits to the city of Chicago; that the property of petitioner was assessed $648.38; and that his proportion of the excess to be credited back pursuant to the statute was $17.47.The prayer of the petition is that a writ of mandamus may issue against the defendants, commanding them to cause the whole amount of said excess of said assessment over and above the cost of said work to be credited upon the said installments, so that petitioner's due proportion may be deducted from his said assessment.

The question in the case depends upon the construction to be given to the statute of this state approved April 29, 1887, and entitled ‘An act to amend article 9 of an act entitled ‘An act to provide for the incorporation of cities and villages, April 10, 1872, in force July 10, 1872,’ by adding thereto the following sections.'Laws 1887, p. 104.The sections which were added to the provisions of article 9 permitted the division of any special assessment for any local improvement into five installments, where the ordinance so provided.By said amendatory act it was required that the ordinance for such improvement should fix the amount of the first installment, to be not more than 25 per cent. of the whole; that the remaining portion should be divided into four equal annual installments, which installments should be payable annually thereafter, and collected in the same manner as other assessments were then collected; that each of the said deferred installments should bear interest at 6 per cent. per annum from the 1st day of July next succeeding the confirmation, provided that if said assessment should not be confirmed before March 1st of any year such installments should not bear interest until July of the following year; and further, that any installment or installments which might be due against any tract, lot, block, or piece of land might be paid at any time before maturity, in which case interest should be charged only to the time of payment, and that upon such payment the property for which said payment was made should be discharged from the lien to the extent of such payment.It was further provided in said act that from the amount of the first payment, when it should be collected, there should first be paid all the costs of making said assessment, including court costs; that the remainder of said payment should then be paid to the person or persons entitled thereto on the contract for said work; that the amount remaining due upon the contract for said improvement should then be divided into four equal payments, and vouchers issued thereon, payable in the same order and manner that said installments were payable; and further, that if, upon the payment of money and the issuance of vouchers as provided for in said act, there should be any surplus remaining of any special assessment over and above the payments aforesaid, it should be the duty of the proper authorities of said city to at once cause the respective installments to be credited with their respective portions of said surplus.The reasons that are set up in the answer of the defendants for failing to credit the whole amount of the excess or surplus are: That vouchers are issued to the contractor in such a case, payable, pursuant to the statute, out of the subsequent installments as they shall be paid in.That by the statute it is provided that such vouchers shall bear the same rate of interest per annum that the said installments bear.That said vouchers were issued in the present case, bearing interest according to the said provision of the statute.That after April 1st of each year the deferred installments accruing for that year, and out of which a series of vouchers must be paid, are paid to the county collector.That no settlement can be amde with the county collector until November 1st of that year, inasmuch as the business of collecting, and selling in case of delinquency, is not complete until that time, so that the money never gets to the hands of the city treasurer until November 1st, out of which the vouchers can be paid.That it often happens that owners of property assessed pay their assessments to the county collector shortly after the warrants are returned to him, and thereby interest on such installments terminates.That interest on the vouchers continues to run until the following November; so that when the money is returned to the city treasurer there is not sufficient to pay the voucher with interest in full.That the result must be either one of three things: First, the voucher must be paid in full, interest and principal, out of the amount collected, before crediting the rebate; or, second, the city must itself, out of other funds, make up the deficiency; or, third, the contractor must lose his interest from the time the money, or any particular amount thereof, was deposited with the county collector, notwithstanding it is impossible for the contractor to get it until the following November.The city therefore claims that the purpose of the statute was to so provide that the entire cost of the improvement should be paid out of the assessment levied, no part to be contributed by the city from other funds; and that the contractor was not to be deprived of his interest because any property owner had exercised his option to make an early payment to the county collector.It has therefore claimed the right to retain an amount equal to six months' interest on the vouchers outstanding, payable from any installment, until it was known how much would be necessary to make up to the contractor his principal and interest in full.And the answer further shows that the defendants have only retained and deducted out of the excess to be...