Workman v. the City of Chicago

• Decision Date: 30 September 1871
• Citation: 1871 WL 8296,61 Ill. 463
• Parties: FRANK WORKMAN et al.v.THE CITY OF CHICAGO,HENRY POTWINv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

61 Ill. 463

1871 WL 8296 (Ill.)

FRANK WORKMAN et al.

v.THE CITY OF CHICAGO,HENRY POTWIN

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. EDWARD ROBY, for the appellant.

Mr. M. F. TULEY, for the appellee. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

These two cases arise out of the same proceedings, present the same questions, and will, therefore, be determined as one case.

Application was made at the March term, 1871, of the Superior Court, by the city collector, for judgment upon a special assessment warrant, to make up the amount which the city failed to collect on an original assessment for curbing with curb walls, grading, and paving with wooden blocks, West Lake street, from the east line of the roadway of Reuben street to the east line of the roadway of Western Avenue, in the city of Chicago.

It appears from the record, and is not controverted by the corporation counsel, that the original assessment was illegal and void, and it was not a case where all the steps were regular and valid down to the completion of the assessment roll for confirmation, but the ordinance and all anterior and subsequent proceedings were illegal and void. The report and recommendation of the board of public works, which was the first step in the proceeding, and ordinance accompanying it, both contained the clauses which vested the board with a discretion, held, in Foss v. City of Chicago, 56 Ill. 354, to be illegal, and to render both void.

In the case of Union Building Association v. City of Chicago, 61 Ill. 439, we had occasion to consider most of the questions involved in this case, though that case was dissimilar in some of its aspects. We there held that, where the original proceedings were illegal and void, they were to be so regarded as to all parties not estopped by their acts from questioning their validity; that, although void, there might still be a new assessment under the 36th section of chap. 7 (Gary's Laws, 75), but such new assessment must be a de novo proceeding, and made, as near as may be, in the same manner as is prescribed for making the first or original assessments under the amendatory acts of 1865 and 1867.

We were reduced to the alternative of holding that the new assessment must be so made, or of denying the right altogether, and this conclusion, it was considered, is not inconsistent with the judgment in the case of City of Chicago v. Ward, 36 Ill. 9, because, in that case, the court expressly held to the same doctrine. “It will be observed,” said the court, “that this section requires this second assessment to be made, as near as may be, in the manner prescribed for the first assessment.” But the question, as to how that was to be, was not, and could not have been, involved in that case, as it was decided in 1864, before the amendatory acts referred to were either of them passed.

In making the new assessment, in this case, both the board of public works and the council treated the original proceedings as valid, not only as to the city, but in respect to nonpaying property owners who were not estopped, by their acts, from questioning their validity.

In their report to the council for the new assessment, the board of public works state the matter thus:

“The commissioners of the board of public works respectfully represent to your honorable body that, at the March term held by the Superior Court of Chicago, in the year 1870, in the city of Chicago, application was made to said court, by the said city, for judgment against various lots and parcels of land for the amounts of assessments and costs respectively due thereon by virtue of the special assessment warrant issued for the curbing with curb walls, grading and paving with wooden blocks, West Lake street, from the east line of the roadway of Reuben street to the east line of the roadway of Western Avenue, and that the city of Chicago failed to obtain judgment for, and failed to collect a portion of, said special assessment, amounting to $56,166.76. "As required by the revised charter, the commissioners of the board of public works ask that a new assessment be ordered to be levied to make up said deficiency.

"The board of public works, in their report, recommending to your honorable body that said improvement be made, estimated its total cost at $119,129.02, and of this amount it was ordered by the common council that the assessment referred to above (as that on which judgment was applied for), be levied for the sum of $102,953.12, and that the public benefits resulting to the city of Chicago from said improvement, and amounting to the sum of $16,175.09, be paid out of the general fund.

"It is the opinion of the board of public works that, of the above total estimate of expense, the amount of said assessment would be properly chargeable to real estate specially benefited by...