23 N.E.2d 697 | Ill. | 1939
The Chicago Title and Trust Company, as trustee, appellee, filed a petition for a writ of mandamus in the superior *281 court of Cook county, to compel the village of Glencoe to pay the sum of $7165.11, balance claimed to be due on a condemnation judgment of $8910, entered in a special assessment proceeding. The superior court issued the writ, holding section 32 of the Local Improvement act (Ill. Rev. Stat. 1937, chap. 24, par. 731) made the village liable to pay such judgment whether the assessment levied in the proceedings be paid or not, and ordered the appellants to pay such judgment. It also held that section 32 did not violate the State or Federal constitutions, and since the constitutionality of this section is attacked, the appeal comes directly to this court.
The village of Glencoe, by an ordinance adoped in January, 1928, provided for the construction of a concrete pavement over a strip of land owned by appellee. The cost of acquiring the property and making the improvement was to be paid by special assessment. In a condemnation proceeding in the county court of Cook county the court fixed the compensation for the land of appellee taken at $8910, and entered judgment for that amount. In June, 1930, the village elected to take the property, entered upon it and constructed the improvement. A large part of the assessment has not been collected and appellee alleged, and the court found, there was $7165.11 of the condemnation judgment due and unpaid. The record also reveals the appellee barricaded the portion of the street built upon its property and the public has been prevented from using it, but no question of title or right of possession of property is involved in this suit.
Section 32 of the Local Improvement act (Ill. Rev. Stat. 1937, chap. 24, par. 731) after making provision for a city or village to elect whether it will dismiss a proceeding in which a condemnation verdict has been rendered or have a judgment entered thereon provides: "* * * if it shall elect to enter such judgment it shall become thereby bound and liable to pay the amount thereof, whether such assessment *282 be collected or not, and such judgment of condemnation shall not be conditional," etc.
The Local Improvement act was enacted under authority of section 9 of article 9 of the constitution which granted the General Assembly power to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. The Local Improvement act of 1897 has repeatedly been held valid. Givens v. City of Chicago,
It is claimed that a construction of section 32 requiring the city to pay a condemnation judgment out of corporate funds in case the assessment is not sufficient, denies to the taxpayers due process of law because many of them would not be directly benefited by the improvement.
It has been held that general taxation and special assessment may be combined in making a local improvement. (Kuehner v. Cityof Freeport,
It is further claimed that the city is not liable to pay the judgment out of funds other than those raised in the special assessment proceeding. The holding of this court is adverse to this contention. (City of Chicago v. McCluer,
There is no provision in the act relating to garbage restricting the use of surplus moneys in the garbage fund to garbage purposes. The act authorizing cities to levy a tax for collecting and disposal of garbage provides for the levying of a tax in addition to the tax levied for general corporate purposes of the city. (Ill. Rev. Stat. 1937, chap. 24, par. 645.) The city has authority, under its general powers, to use its revenue for the collection and disposal of garbage. *285 (Consumers' Co. v. City of Chicago,
The law fixing the powers of cities and villages expressly provides that they "shall have power to control the finances and property of the corporation," (Ill. Rev. Stat. 1937, chap. 24, par. 65,) and it is within the power of the city to use the unexpended surplus of money derived from the collection of garbage taxes or from earnings of the garbage plant for any proper corporate purpose.
It is claimed by appellants that this money is reserved for depreciation and replacement of the plant. The appropriation ordinances for the years 1935-36-37 do not disclose any appropriation of moneys in the garbage fund for depreciation and replacement, but on the contrary they only appropriate money for annual expenses, which are set forth in detail, and which do not include the purposes above mentioned.
In People v. City of Cairo,
It appears to us that there is no question of a debt being owing to the petitioner; that it is of long standing, and that the appellants at the time the order was made by the *286 superior court had funds which they could make available for the payment of this debt. It is claimed, however, that the writ ofmandamus awarded is not broad enough to compel the city officers to take the surplus money from the garbage fund to apply in discharge of this judgment. It is surplus money that may be used for a general corporate purpose, and all that is necessary to put it into the general fund is a resolution by the board of trustees of the village. We think the writ issued by the court, directed as it is, is broad enough to require the village to do anything that is necessary to be done to apply this fund in discharge of appellee's judgment.
The briefs contain a full discussion of the other tax items going into the general account, but since there is ample money available in the surplus funds collected from the earnings of the garbage plant and the garbage tax, to pay the claim in question, it is unnecessary to pass upon the questions affecting other funds raised by the village of Glencoe for other corporate purposes.
The judgment of the superior court of Cook county is affirmed.
Judgment affirmed.