39 N.E.2d 987 | Ill. | 1942
The single question presented on this appeal is whether in a suit by a municipality to foreclose the lien of a special assessment, the holders of the special assessment vouchers or bonds issued in anticipation of the collection of the special assessment, are necessary parties. This question arose by a motion of the defendant property owner to dismiss the foreclosure complaint filed in the circuit court of Cook county on the ground of a lack of necessary parties, the overruling of this motion by the court, defendant's election to stand on her motion, and the entering of a default judgment against her. This appeal followed.
It is agreed there is no authority in this State on the question presented. We must, therefore, look to the provisions *123
of the Local Improvement act. (Ill. Rev. Stat. 1941, chap. 24, article 84.) It provides a complete plan for the making of local improvements, must be faithfully followed and strictly construed.(Monahan v. City of Wilmington,
Nowhere does the act provide that a holder of the bonds or vouchers may bring such a foreclosure action. Instead, section 90 provides that "No person accepting the vouchers or bonds as provided in this article shall have any claim or lien upon the municipality in any event for the payment of his vouchers or bonds or the interest thereon, except from the collection of the assessment against which the vouchers or bonds are issued. The municipality, nevertheless, shall not be in any way liable to the holders of these vouchers or bonds in case of a failure to collect the assessment, but with all reasonable diligence, so far as it can legally do so, it shall cause a valid special assessment or assessments, a special tax or taxes, as the case may be, to be levied and collected, to pay these bonds and vouchers, until all bonds and vouchers are fully paid. Any holder of vouchers or bonds, or his assigns, shall be entitled to *124 summary relief by way of mandamus or injunction to enforce the provisions of this section." This demonstrates that the ownership of the lien is in the municipality, not in the holders of bonds or vouchers, and that the municipality is under a duty, which the bondholders may compel it to perform, to use all lawful means, including foreclosure, to collect the taxes out of which the bondholders are to be paid. There is no provision requiring that bondholders be made parties to any such proceedings.
Appellant refers to section 216 of the Revenue act (Ill. Rev. Stat. 1941, chap. 120, par. 697) which provides that the lien of delinquent general taxes "may be foreclosed in equity in any court of competent jurisdiction." She does not say that the distributees of the general taxes or their creditors are necessary parties in such a proceeding. She argues that since the proceeding is one in equity, the general equitable rule applies that all persons possessing a substantial legal or equitable interest in the subject matter of litigation and who will be affected by the decree must be made parties. (Texas Co. v.Hollingsworth,
Appellant argues that the rights of the bondholders are not adequately represented and will not be adequately protected by the municipality, because it is not liable for the payment of these bonds unless it diverts the fund or fails to pay it ratably after it is collected. In this same connection she claims the municipality will have interests adverse to those of the bondholders because the general taxes are also liens on the same property, and that the municipality will want to free the land of the lien of the special assessment in order that the lien of the general taxes will be paramount. This contention is without force. It cannot be presumed that a governmental body would fail to perform the duty imposed upon it by law as a trustee to collect and pay the money derived from special assessments to those entitled thereto merely to favor its general creditors. It cannot be said a municipality has a personal interest which is antagonistic to the interest of the special assessment bondholders. It has no such selfish interest. Moreover, it would have a desire to use every possible means to see that special assessment bondholders receive full payment in order that it might more easily finance local improvements in the future. In the absence of a showing that a municipality has failed to act or is acting in bad faith, we cannot hold the bondholders are necessary parties. There is no such showing here. The municipality is now pursuing the last remedy available to collect the assessment and it is not suggested the municipality is not following the procedure prescribed by law.
The decree is affirmed.
Decree affirmed. *127