Vill. of Park Ridge v. Robinson

• Decision Date: 25 October 1902
• Parties: VILLAGE OF PARK RIDGE v. ROBINSON.
• Court: Illinois Supreme Court

198 Ill. 571

65 N.E. 104

VILLAGE OF PARK RIDGE

v.ROBINSON.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Action by Silas W. Robinson against the village of Park Ridge. Judgment for defendant was reversed by the appellate court (100 Ill. App. 409), and defendant appeals. Reversed.Black & Black and Joseph A. Phelps, for appellant.

Charles H. Baldwin, for appellee.

Silas W. Robinson, the appellee, brought this action in assumpsit in the superior court of Cook county to recover of the village of Park Ridge, the appellant, the balance of $2,968.85, which he claimed the village owed him for constructing sidewalks in said village. The case was tried by the court without a jury, by agreement, and on a stipulation of facts. Propositions to be held as law in the decision of the case were submitted on both sides, and the court held that the plaintiff was not entitled to recover, and rendered judgment for the defendant. On appeal by the plaintiff the appellate court reversed the judgment, and entered judgment of its own in favor of the plaintiff against the defendant for the amount claimed.

The facts agreed upon were, in substance, that the president and trustees of the village on June 23, 1894, passed an ordinance providing for the construction of sidewalks on certain streets of the village, which, after describing the location and character of the walk to be constructed (concerning which there is no dispute), was as follows:

‘Sec. 3. All owners of lots or parels of land aforesaid are hereby required to construct said sidewalk in front of their lots or parcels of land within ten days after the date of publication of this ordinance, and in default thereof such sidewalk shall be constructed and laid by the village.

‘Sec. 4. Said street commissioner shall certify to a bill of the cost of said sidewalk, showing in separate items the cost of grading, materials, laying down and supervision, and file it in the office of the village clerk, together with a list of the lots and parcels touching upon the line of the sidewalk, and the names of the owners thereof, and the frontage on said sidewalk.

‘Sec. 5. The village collector is hereby designated the officer to collect the special tax herein provided, and to whom warrants for the same shall be directed.

‘Sec. 6. The village clerk shall comply with the provisions of the act to provide additional means for the construction of sidewalks in cities, towns and villages, in force July 1, 1875, and if any lands or lots is delinquent after return of warrant by said village collector, then said village clerk shall make a report of said delinquent special tax, in writing, to the county treasurer, ex officio collector, prior to March, 1894, as required by this act.’

The work having been let to Robinson on his bid, a written contract was entered into, duly executed between him and the village, reciting the ordinance in full, and which contract contained, among others, these provisions: ‘The village of Park Ridge covenants to pay to the first party, when the contract shall be wholly carried out and the work shall have been accepted by the president and board, and when and as the special tax or taxes levied or to be levied for the same shall be collected, the sum or sums stated in the bids of the first party for doing the work, on file in the office of the village clerk, copies of which are made a part of this contract; that from time to time interest-bearing warrants drawn against and payable out of said special tax or taxes, to be of the usual form of such warrants, and to bear interest from date at the rate of six per cent. per annum until paid, may be issued to said party of the first part upon estimates to be made by the inspector, or such other person as may be appointed by said president and board of trustees; said warrants to be negotiable in terms. * * * So far as money shall at the time of the issuance of such estimates be collected upon a special tax or taxes for said work, and applicable to the payment of such estimates, such money shall be applied to the payment of such estimates, and for the balance for which no collections are available the interest-bearing warrants above provided for may be drawn and issued. * * * In case the village should become the purchaser of any special tax certificates, such purchase shall not be deemed a collection of such special tax, and no act shall be construed as a collection until the money due has been actually paid into the village treasury. * * * No estimate will be issued to the contractor until all claims for labor and material have been satisfied, said sum of money being payable out of the proceeds of any special tax which shall hereafter be levied for the said improvements; the said party of the first part agreeing hereby to make no claim against said village in any event, except from the collections from the special taxes made or to be made for the said improvements, and to take all risks of the invalidity of said special tax, or any of them, or of the proceedings therein, or for failure to collect the same; and to make no claim against said village, in any event, by reason of any suit or proceedings which may be instituted against said village or any of its officers, preventing or retarding the prosecution of the work. If the progress of the work is satisfactory to the president and board and all claims for labor and material are satisfied, then every two weeks estimates will be issued up to eighty-five per cent. of the value of the work, and estimates for the remaining fifteen per cent. only on final completion and acceptance. It is understood that any excess of the special taxes levied for said improvement over and above the actual cost shall be reserved by the village, so that it may be rebated to property owners when the cost is known, and that said estimates will accordingly be paid fully only when the tax levied for the improvement shall be wholly collected, so that the payments made on vouchers and estimates prior to the full collection of taxes, together with the amount of excess of taxes to be rebated to property owners, shall not exceed the full amount of cash collections in the treasury of said village to the credit of said tax fund.’

After the completion of the work, warrants, 11 in number, were issued to Robinson, part in 1894 and part in 1895. The village collector collected $647.16 of the lot owners, which amount was paid to Robinson on said warrants, reducing the total to the amount sued for. Said warrants were duly executed and signed by Robinson, and were all substantially the same, to wit: ‘Village of Park Ridge, Illinois. Warrant No. 2. Special Tax No. 23. Amount, $176.01. For Sidewalk. Installment No. ___. Park Ridge, November 20, 1894. This is to certify that S. W. Robinson, or order, is entitled to one hundred seventy-six and 01/100 dollars, when collected, from installment No. ___ of special tax No. 23 on contract for sidewalk. Peale's subdivision. This voucher will bear interest at the rate of six per cent. per annum, payable on the first day of July annually, from November 20, 1894, and is issued under the act of legislature approved June 15, 1891, is due with the taxes of 1894; and this voucher can only be paid out of the money received from the above named installment. In consideration of the issuing of this voucher I hereby, for myself, heirs, executors, administrators, and assigns, accept the same in full payment of the amount herein stated, and relinquish any and all claims or liens I may have against the village of Park Ridge for the work mentioned herein, of for the payment of this voucher, except from the collection of the installment herein named.’

The county court, on objections filed to the rendition of judgment against delinquent lots, held said ordinance to be void, and sustained the objection. Afterward, in August, 1895, the village passed another ordinance, purporting to amend said first-named ordinance, and to levy a special assessment to pay the cost of said work, which had theretofore been completed, under article 9 of the act of 1872 for the incorporation of cities and villages. Afterward the county court sustained objections to the confirmation of the special assessment levied under the lastnamed ordinance, and refused judgment thereon, and the petition was dismissed by the court.

It was further stipulated that shortly before this suit was begun an appointment was made between the plaintiff's attorney and the village board for a meeting to devise ways and means to enforce payment from the lot owners, and to effect a settlement of the differences arising out of the failure to collect such tax; but such attorney was unable to keep the appointment, and the board passed the following resolution, and caused a copy of it to be sent to such attorney, to wit: ‘Resolved, that said village of Park Ridge, still being very desirous to have said indebtedness, if any exists, fully paid and satisfied, it is still ready to receive any suggestion, advice, and assistance from said plaintiff, or from any other person interested in the recovery of said indebtedness or other proceeding which may be instituted for that purpose, and render any practicable assistance and exercise any power vested in it to that end, and it does hereby urgently solicit such suggestions, advice, and assistance.’ But no meeting was had, and soon thereafter the suit was begun. It was further stipulated ‘that the pleadings already filed herein shall be taken as sufficient to allow either party to set up any claim or defense not inconsistent with the facts above stated. It is also stipulated that any of the original records or documents above set forth or referred to may be produced on the hearing of this cause, and full copies of the same may be included in the record, if it shall seem desirable to either party so to do. If, upon the foregoing facts, the court is of the...