Scammon v. the City of Chicago.

• Decision Date: 30 April 1866
• Citation: 40 Ill. 146,1866 WL 4445
• Parties: J. YOUNG SCAMMONv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

40 Ill. 146

1866 WL 4445 (Ill.)

J. YOUNG SCAMMON

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Superior Court of Chicago.

Hon. JOHN M. WILSON, Chief Justice, presiding.

This was an appeal from a judgment upon a special assessment made for curbing, grading, and paving with wooden block pavement, Wabash avenue, from the south line of Randolph street to the north line of Twenty-second street, in the city of Chicago.

The opinion states the case.

Mr. J. L. THOMPSON, for the appellant.

Mr. S. A. IRVIN, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was a proceeding to condemn certain lots in the city of Chicago for failure to pay a special assessment levied upon them for the purpose of paving a portion of Wabash avenue. This appeal is prosecuted from the judgment rendered against the lots in the court below.

In summary proceedings of this character whereby titles are divested, the law, under which they are instituted, must be strictly followed as to all its substantial requirements. This is especially true in regard to notice, which stands in the place of process. Section 13, chapter 7, of the charter of Chicago as amended in 1863, directs that, in these proceedings “notice shall be given by said commissioners, by six days' publication in the corporation newspaper, of the filing of such assessment roll in the clerk's office; and that, at the next regular meeting of the common council, to be held after the expiration of such publication, they will apply to the common council for a confirmation of said assessment.”

This unquestionably means a publication for six different days, and has been so construed by the city. In the case at bar in order to make out the six days notice, it is necessary to count a publication made on Sunday, July 6, 1865, and one of the questions presented is, whether that publication can be properly counted. The validity of this notice is clearly just what it would have been, if the charter had only required one publication, and that had been made on Sunday. Would such a notice have been sufficient?

At the common law, Sunday was, in legal phrase, dies non juridicus. No valid judicial proceeding could be had upon that day. This rule of the common law was applied in this court in Baxter v. The People, 3 Gilm. 368, and a judgment rendered on Sunday pronounced absolutely void, though it was held in the same case a verdict might be received on Sunday as a matter of necessity.

But while the common law may only prohibit strictly judicial proceedings, it will hardly be contended that in this State civil process can be legally served on Sunday. In England this was forbidden by the 29 Car. 11, and in this State the same result would follow from the 144th section of our Criminal Code. That section is as follows:

“Any person who shall knowingly disturb the peace and good order of society, by labor or amusement on the first day of the week, commonly called Sunday (works of necessity and charity excepted), shall be fined,” etc.

The unquestionable object of this law is, to secure to every individual in the community the right to pass the Sunday, either in religious exercises, or in the quiet and...