The City of Chicago v. People of State Ex Rel. Hiram Norton

• Decision Date: 30 September 1870
• Citation: 56 Ill. 327,1870 WL 6531
• Parties: THE CITY OF CHICAGOv.THE PEOPLE OF THE STATE OF ILLINOIS ex rel. HIRAM NORTON et al.
• Court: Illinois Supreme Court

56 Ill. 327

1870 WL 6531 (Ill.)

THE CITY OF CHICAGO

v.THE PEOPLE OF THE STATE OF ILLINOIS ex rel. HIRAM NORTON et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion of the court contains a sufficient statement of the case.

Mr. M. F. TULEY, for the appellant.

Messrs. BACON & NORTON, for the appellees.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This case arises upon demurrer to the return of appellant to an alternative writ of mandamus, awarded to compel the payment to relators of a claim of $4,728.68, alleged to be a balance due them as assignees of George W. Travers & Co., upon estimates issued to the latter for work done under a contract, for curbing, filling and macadamizing Chicago avenue.

The demurrer was sustained and a peremptory writ ordered against appellant, requiring it forthwith to pay, or cause to be paid, to relators the principal sum of $3,915.38, with interest at the rate of six per cent per annum on the several estimates comprising said principal sum from the respective dates of the same, amounting to $557.41, making a total amount of $4,072.79.

From which judgment an appeal was taken to this court, and the points made for reversal are: 1st. That under the contract between appellant and Travers & Co., the city was not liable for the principal sum. 2d. That interest was improperly allowed. 3d. If the city is liable, the order should have been that it proceed to levy a tax to pay the amount due, instead of a peremptory order to pay. Before the hearing below, a stipulation between the parties was made by their respective attorneys, and filed, to the effect, that if upon the decision of the cause the court should be of opinion that in any form of action, ex contractu or ex delicto, in law or equity, the relators or George W. Travers & Co., either in their own names, or in their names to relators' use, would be entitled to recover any sum of money or have any relief of or from the respondent, then a peremptory writ of mandamus might issue for said amount; said writ to be in such form as the court might judge proper, waiving all objections for want or misjoinder of parties.

This stipulation, being binding upon the parties, relieves this court from all consideration of the third point made by appellant's counsel; consequently, the first and second alone will be discussed.

First, then, under any view of the matters disclosed by the record, by the allegations of the writ not traversed, and the facts stated in the return, which must, so far as well pleaded, be taken as true, would appellant be liable in any form of action at law, or proceeding in equity?

By the facts so admitted and stated, it appears that the ordinance ordering the improvement and the levy of the assessment, was passed May 3, 1867, by which the sum of $82,563.43 was directed to be assessed upon real estate deemed specially benefited by the improvement, in proportion, as nearly as might be, to the benefits resulting thereto, and $21,048.45 be chargeable to the city at large. On the 10th of June, 1867, the assessment roll was completed, and on the 17th of the same month, the assessment was confirmed by the council, and the warrant issued on the 29th; that of the above sum assessed upon property deemed benefited, the sum of $4,965.80 was assessed upon the right of way and property of the North Chicago Railway Company, as the amount of special benefits resulting to that corporation; that before Travers & Co. entered into the contract in question, one-half of the amount of the assessment upon property deemed specially benefited had been paid into the city treasury. On the 14th day of August, 1867, the contract was made between appellant and Travers & Co. by which the latter undertook to do the work, the details of which it is needless to state, only that the appellant agreed to pay them when the contract should be wholly completed by Travers & Co., when the work should be accepted by the board of public works, and when the special assessments, levied or to be levied, should be collected.

It is admitted, that the work was completed by Travers & Co., according to contract, and accepted by the board, the estimates issued and assigned to the relators. But it also appears, that appellant failed to collect any of the sum assessed upon the property of the railway company, and failed to obtain a judgment for it, because the railway company was wholly exempt from any such levy; that subsequently appellant attempted to levy a new assessment for the deficiency, but failed to obtain judgment, by reason, as it is alleged in the alternative writ, of its gross negligence and want of diligence in that behalf. The allegations of negligence are specifically denied by the return. This traverse we think is sufficient to raise an issue of fact as to the negligence in regard to the new assessment, and precludes the relators from basing any ground of recovery or relief upon it.

Under the facts disclosed, appellant had no legal authority to levy a new assessment upon property other than that of the railway company, upon which its due...