94 Ill. App. 561 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The question presented by this record is, whether or not the court erred in overruling appellant’s demurrer to appellee’s declaration. The gist of the plaintiff’s action is, as alleged in each count of the declaration, that the city, in willful disregard of the rights of the holders of the warrants set out in the declaration, and without making any provision for the payment thereof, wrongfully caused the petitions to be dismissed, and all proceedings in relation to the assessments to be abandoned.
That this is the gist of the action is conceded by appellee’s counsel in their argument. They say :
“ This is an action in case against the defendant based on its wrongful act in failing to collect certain special assessments, or make any other provision for the payment of the commissioners for services rendered by them, in making and spreading sundry special assessments particularly described in the declaration.”
The action is <?* delicto, and the wrong alleged is that the city wrongfully caused the petitions in the matter of the assessments to be dismissed and the proceedings thereunder to be abandoned in the County Court. This necessarily implies that it was the duty of the city to continue the assessment proceedings; that it had no right, after some of the .assessments were wholly and others partially confirmed, to discontinue the proceedings.
If the city had lawful right to discontinue the assessment proceedings, and abandon the improvements to pay for which the assessments were made, then there was no wrong-in the dismissal of the proceedings. Both the village of Rogers Park and the city of Chicago were acting under article 9 of the act for the incorporation of cities and villages, the former when it is alleged it ordered the making of the improvement by means of special assessments, and the latter when it dismissed the special assessment proceedings, and after the annexation of the village to the city the latter had the same power in respect to the proposed improvements which the former had prior to such annexation. A municipal corporation, acting under article 9, is the exclusive judge of whether a local improvement which it is authorized to make, shall be made, and if it order such an improvement to be made, by means of a special assessment to defray its cost, and such assessment is made and confirmed, as prescribed by the statute, it does not thereby become legally bound to make the improvement, but may lawfully abandon it and all proceedings in relation to it. City of Chicago v. Barbian, 80 Ill. 482; City of Bloomington v. Miller, 84 Ib. 621, 622; Herfort v. Breckinridge, 87 Ib. 205, 209; C. & N. W. Ry. Co. v. City of Chicago, 148 Ib. 141, 151; City of Chicago v. Hayward, 176 Ib. 134; City of Chicago v. Shepard, 8 Ill. App. 602; 2 Dillon on Mun. Corp., 4th Ed., Sec. 608; Maryland v. Graves et al., 19 Md. 351.
In City of Chicago v. Barbian, supra, the city instituted condemnation proceedings for the purpose of widening a street, and the compensation to be paid to the owners of property to be taken or damaged was ascertained by a jury, and a conditional judgment wa.s entered. Also, although this is not shown in the report of the case, a special assessment was made by commissioners appointed by the court to pay the compensation awarded, and ivas returned into court. Subsequently the city repealed the ordinance ordering the improvement and dismissed the proceedings. Barbian, an owner of property in respect of which compensation had been awarded, petitioned for a writ of mandamus to compel the city to levy and collect a tax to pay his compensation or damages. The trial court overruled a demurrer to the petition, and awarded the writ, but the Supreme Court reversed the judgment, on the express ground that the city had the right to abandon the proposed improvement and dismiss the proceedings.
In City of Chicago v. Shepard, supra, it appeared that, in a condemnation proceeding for the opening and extension of a street, compensation had been awarded in respect to property owned by Shepard and others, and proposed to be taken or damaged, and an assessment to pay the cost of the proposed improvement had been made and confirmed, and a warrant had been issued and a large part of the assessment collected; after which the city withdrew the warrant and abandoned the improvement. Shepard sued the city for the amount awarded in respect of his property, and recovered judgment in the trial court, which judgment was reversed in this court. The court, McAllister, J., delivering the opinion, say:
“ It is the settled law of this State, that the applicant for condemnation may, at any time before payment of the compensation, discontinue and abandon the improvement and all proceedings to carry it into effect.”
If the city may abandon such an improvement as the opening or widening of a street, after the compensation in respect to private property proposed to be taken or damaged has been ascertained by the verdict of a jury and awarded by a judgment, and an assessment to pay the amount awarded has been made, confirmed and partially collected, a fortiori, there may be an abandonment of an assessment of benefits for the improvement of a street, in which proceeding no question of damage to private property is involved.
The owners of property assessed on account of special benefit to accrue to it, by reason of the proposed improvement of a street, have no vested right to a continuance of the proceedings.
But counsel for appellee contend that the city owed to the commissioners, who made the assessments setforth in the declaration, and under whom appellee claims, the duty of continuing .and prosecuting the proceedings and collecting the assessment. Counsel say:
“ They (the commissioners) had a settlement with the village board, and had received their vouchers, and they were entitled to have the city not only refrain from placing an absolute barrier in the wav of their ever being paid in the manner agreed, as was done by dismissing the proceedings, but were entitled to have the city use due and proper diligence to collect the fund from which they were to be paid.”
In other words, notwithstanding the city had lawful right to abandon the contemplated improvements, which necessarily involved a dismissal of all proceedings in relation to them, the city was bound to continue the assessment proceedings and collect the assessments. The commissioners who made the assessments, and by assignment from whom appellee claims, were not agents of the village of Bogers Park, nor did any contractual relation exist between them and that village; they were appointed by the court to make the assessment under section 23 of article 9 of the city and village incorporation act, and were officers of the court for that purpose; their compensation ivas authorized bv section 20 of article 9 to be included in the estimate of the cost of the work, and the compensation of the commissioners was, presumably, included in the amount to be assessed against property specially benefited. Kimble v. City of Peoria, 140 Ill. 157.
The city, having determined to abandon the improvements, necessarily dismissed the proceedings, the only object of which was to raise money to pay for them. It could not enforce assessments for the cost of improvements which it had determined not to make. Counsel evidently perceive this difficulty, because, in another part of their argument, they say, in substance, that the commissioners must be paid from the special assessments, “ or, in case the city refuses to collect the assessments, it then becomes liable.” The declaration, however, is not framed, or the action brought, on the theory indicated in the language quoted, but on the theory of a wrong committed by the city, viz., that it wrongfullv caused the petitions for assessments to be dismissed, and all proceedings thereunder to be abandoned. To sustain the action of the trial court in overruling the demurrer to appellee’s declaration, would be to hold that the city wrongfully and unlawfully abandoned the improvements and dismissed the petitions, which, in view of what we deem the well settled law of the State, we can not hold. We have examined the cases cited by appellee’s counsel, and find 'them inapplicable to the present case. Whether the city is or not liable in an appropriate action, is a question not presented by the record, and therefore not considered in this opinion.
For the error in overruling appellant’s demurrer to appellee’s declaration, the judgment will be reversed and the cause remanded.
