| Ill. | May 12, 1887
delivered the opinion of the Court:
This cause has been elaborately argued in behalf of plaintiff, but the view taken by this court can be shortly stated. A succinct account of the transactions, out of which the condemnation judgments arose upon which the action is brought, may be found in the opinion of this court in The People v. Hyde Park, 117 Ill. 462" date_filed="1886-01-25" court="Ill." case_name="People ex rel. Thatcher v. Village of Hyde Park">117 Ill. 462. It is in all essential features the same case, except this is an action of debt on the condemnation judgments, and the former case was a mandamus to compel the village to pay such judgments out of a fund to be raised by a general tax. Should the present judgment be permitted to stand, the village might be compelled to pay it out of a common fund, to be raised by a general tax upon the property situated within the limits of the village, as any other judgment. It is therefore plain, it is sought to do by this action that which it was decided in the former case could not be done at all,—i. e., to compel the village to pay the condemnation judgments, or, what is the same thing, compel the village to levy a general tax on the property within the village for that specific purpose.
Counsel is in error in assuming the “action of mandamus was defeated on the technical ground * * * no proper demand to maintain mandamus had been made.” Such was not the case. It was distinctly said that was one of the minor questions in the case, to which no great importance was attached. It is also error to suppose no other questions discussed and decided in that case are res judicata. The principal point made was, whether the village could be compelled to pay the condemnation judgments out of a common fund, to be raised by general taxation on all the property of the municipality, and it was held it could not be. Precisely the same argument was then made in favor of the relief demanded as is now made in support of the present judgment. It was then insisted, as is now done, the enabling ordinance under which the proceedings were originally commenced, was repealed, and that by the act of the village in taking possession of the lands of plaintiff the condemnation judgments became absolute. It was ruled the enabling ordinance was not repealed by the ordinance of July 2, 1877, so far as the land between Forty-first and Forty-second streets is concerned, which is the land in controversy, and that decision is res judicata, and is not open for reconsideration in this case. The village board had declared, by ordinance, before anything was done, the entire cost of the proposed improvements should be paid for wholly by special assessments. It was .within the legislative authority of the village to so declare, and its discretion in that regard could not be controlled by the courts. That mode of payment for the land proposed to be taken for public use was fixed and determined in advance, by ordinance, and while that ordinance remains in force, as it does, it excludes any other mode of payment. These questions were passed upon by this court in the former case, and it is not necessary to re-state the reasoning by which the conclusions were reached. It is sufficient that under the former decision the condemnation judgments, can only be paid, if at all, by special assessment under the-original ordinance, which is in force as to them. That being, so, the Superior Court should have instructed the jury, as1 it was asked to do, there could, in law, be no recovery on such condemnation judgments.
The judgments of the Appellate and Superior Courts will be-reversed, and the cause remanded to the Superior Court.
Judgement reversed.
Mr. Justice Sheldon, dissenting.