Mr. Presiding Justice Gridley
delivered the opinion of the court.
By the first proposition of law submitted by the plaintiff and marked “held” by the trial court, the court held, as a matter of law, that the city had been negligent, prior to the bringing of the present action, in performing its duty to levy, collect and pay over such special assessments as it lawfully could to the owners of said condemnation awards for the property taken. By the second proposition of law the court held, as a matter of law, that the plaintiff had proved a valid cause of action against the defendant for negligence and delay in paying said awards. By the third proposition the court held that the time which elapsed between the entry of said awards and the beginning of the present action was much more than a reasonably time within which to make payment for the property taken. By the fourth proposition the court held, as a matter of law, that legal interest should be allowed as part of the damages in this case upon said awards from September 1, 1893. By the sixth proposition the court held, as a matter of law, that plaintiff’s disbursements for expenses and attorneys’ fees properly incurred in attempting to enforce the city’s liability growing out of said awards were proper elements of damages in this ease. It was on these theories that the trial court, in this tort action, assessed plaintiff’s damages at the sum of $31,208.66, and entered a general judgment against the city in that amount. This sum was made up of the sum of $26,670.66, which according to plaintiff’s computation was the amount unpaid on said awards together with interest at the legal rate from September 1,1893, to April 25,1914, 'and the further sum of $4,538, costs and attorneys’ fees paid or to be paid by plaintiff. Among the propositions of law submitted by the city the court held, as matters of law, by the fifth proposition, that the said awards were not judgments against the city directly, but were to be paid strictly in accordance with the terms of the original condemnation ordinance, and in accordance with the provisions of article IX of the Cities and Villages Act of 1872 (J. & A. 1388); by the fourteenth proposition, that the reQovery of fees or costs is a statutory question, and must be governed by the terms of the statute under which the proceeding is brought; by the twenty-sixth proposition, that no money or property of this plaintiff has been wrongfully obtained by the city; and by the twenty-seventh proposition, that no money or property of this plaintiff has been illegally withheld by the city.
By the decisions in Mecartney v. City of Chicago, 150 Ill. App. 275, in Mecartney v. City of Chicago, 177 Ill. App. 23, and in Thomasson v. City of Chicago, 261 Ill. 131, it was decided that plaintiff could not recover the balance due on said awards in an action in assumpsit. And by the decisions in City of Chicago v. Mecartney, 172 Ill. App. 586, and in City of Chicago v. Thomasson, 259 Ill. 322, it was decided that, on the intervening petition filed by plaintiff in the condemnation proceedings, the court had no jurisdiction to enter an absolute and unconditional judgment against the city for the balance of said awards with interest.
The ordinance passed by the City Council of Chicago on July 24, 1893, for the widening of South Park avenue between Fifty-fifth and Fifty-sixth streets and for the taking of the strips of land mentioned for that purpose, provided that the cost of the improvement should be “paid for by a special assessment'to be levied upon the property benefited thereby to the amount that the same may be legally assessed therefor, and the remainder of such cost tó be paid by general taxation in accordance with article IX” of the Cities and Villages Act of 1872 (J. & A. ¶ 1388). After the passage of said ordinance, and in pursuance of the provisions of said act, on August 29, 1893, the city filed a condemnation petition in the Circuit Court of Cook county to acquire said strips of land. Three days after the filing of said petition, to-wit, on September 1, 1893, the city, with the actual and express consent of the then owners of said strips of land (namely, the plaintiff in the present case, and Thomasson and Gfarnett and Phelps) took actual and permanent possession of said strips of land for the purposes of a public street, and the same have been since continuously and exclusively used for such purposes and as a part of said South Park avenue. At the January term, 1894, of the said court, compensation was awarded to the owners of one strip of land taken in the sum of $12,025; at the October term, 1894, to the owner of another strip taken in the sum of $4,162.50; and at said October term to the owner of the third strip taken in the sum of $3,312.38. These awards aggregated the sum of $19,499.88. Thereafter the plaintiff in the present case became the assignee of all of said judgments and entitled to receive said aggregate sum. To raise said sum, in accordance with said ordinance, the city filed from time to time four supplemental petitions under section 53 of article IX of said Act (J. & A. ¶ 1443), with the results as above outlined in the ‘ ‘ statement of the ease.” It appears that the plaintiff, Mecartney, as assignee of said judgments, has had paid to him by the city on said judgments the total sum of $12,033.74, or nearly two-thirds of the aggregate amount of said judgments or awards. It further appears that under the fourth supplemental petition, filed by the city on January 25, 1910, an assessment was levied on certain sublots, mentioned in said statement of the case, in the aggregate amount of $7,783.60, for the purpose of paying the balance of said awards; that objections to the assessment were filed; that on June 14, 1910, the assessment was confirmed; that the objectors appealed to the Supreme Court of this State, which court in April, 1911, affirmed said judgment of confirmation (City of Chicago v. Willoughby, 249 Ill. 249); that said objectors by writ of error took the case to the Supreme Court of the United States; and that in November, 1914, said writ of error was by that court dismissed (Willoughby v. City of Chicago, 235 U. S. 45).
Section 1 of said article IX of the Cities and Villages Act of 1872 (J. & A. ¶ 1388) provides “that the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.” Section 2 (J. & A. ¶ 1389) provides that “when any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment or by special taxation of contiguous property, or general taxation, or both.” In the above cited case of City of Chicago v. Thomasson, 259 Ill. 322, our Supreme Court held (p. 327) that, at the time when said condemnation petition was filed, it was only under the provisions of said article IX of said Act that the city might condemn property for a local improvement; that said article provided for a purely statutory proceeding and was a complete code in itself; that under the statute payment might be made in any one of the modes provided, but that the adoption of any one or more of these modes by a local improvement ordinance excluded the idea of payment in any other manner. The court said (p. 328):
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Presiding Justice Gridley
delivered the opinion of the court.
By the first proposition of law submitted by the plaintiff and marked “held” by the trial court, the court held, as a matter of law, that the city had been negligent, prior to the bringing of the present action, in performing its duty to levy, collect and pay over such special assessments as it lawfully could to the owners of said condemnation awards for the property taken. By the second proposition of law the court held, as a matter of law, that the plaintiff had proved a valid cause of action against the defendant for negligence and delay in paying said awards. By the third proposition the court held that the time which elapsed between the entry of said awards and the beginning of the present action was much more than a reasonably time within which to make payment for the property taken. By the fourth proposition the court held, as a matter of law, that legal interest should be allowed as part of the damages in this case upon said awards from September 1, 1893. By the sixth proposition the court held, as a matter of law, that plaintiff’s disbursements for expenses and attorneys’ fees properly incurred in attempting to enforce the city’s liability growing out of said awards were proper elements of damages in this ease. It was on these theories that the trial court, in this tort action, assessed plaintiff’s damages at the sum of $31,208.66, and entered a general judgment against the city in that amount. This sum was made up of the sum of $26,670.66, which according to plaintiff’s computation was the amount unpaid on said awards together with interest at the legal rate from September 1,1893, to April 25,1914, 'and the further sum of $4,538, costs and attorneys’ fees paid or to be paid by plaintiff. Among the propositions of law submitted by the city the court held, as matters of law, by the fifth proposition, that the said awards were not judgments against the city directly, but were to be paid strictly in accordance with the terms of the original condemnation ordinance, and in accordance with the provisions of article IX of the Cities and Villages Act of 1872 (J. & A. 1388); by the fourteenth proposition, that the reQovery of fees or costs is a statutory question, and must be governed by the terms of the statute under which the proceeding is brought; by the twenty-sixth proposition, that no money or property of this plaintiff has been wrongfully obtained by the city; and by the twenty-seventh proposition, that no money or property of this plaintiff has been illegally withheld by the city.
By the decisions in Mecartney v. City of Chicago, 150 Ill. App. 275, in Mecartney v. City of Chicago, 177 Ill. App. 23, and in Thomasson v. City of Chicago, 261 Ill. 131, it was decided that plaintiff could not recover the balance due on said awards in an action in assumpsit. And by the decisions in City of Chicago v. Mecartney, 172 Ill. App. 586, and in City of Chicago v. Thomasson, 259 Ill. 322, it was decided that, on the intervening petition filed by plaintiff in the condemnation proceedings, the court had no jurisdiction to enter an absolute and unconditional judgment against the city for the balance of said awards with interest.
The ordinance passed by the City Council of Chicago on July 24, 1893, for the widening of South Park avenue between Fifty-fifth and Fifty-sixth streets and for the taking of the strips of land mentioned for that purpose, provided that the cost of the improvement should be “paid for by a special assessment'to be levied upon the property benefited thereby to the amount that the same may be legally assessed therefor, and the remainder of such cost tó be paid by general taxation in accordance with article IX” of the Cities and Villages Act of 1872 (J. & A. ¶ 1388). After the passage of said ordinance, and in pursuance of the provisions of said act, on August 29, 1893, the city filed a condemnation petition in the Circuit Court of Cook county to acquire said strips of land. Three days after the filing of said petition, to-wit, on September 1, 1893, the city, with the actual and express consent of the then owners of said strips of land (namely, the plaintiff in the present case, and Thomasson and Gfarnett and Phelps) took actual and permanent possession of said strips of land for the purposes of a public street, and the same have been since continuously and exclusively used for such purposes and as a part of said South Park avenue. At the January term, 1894, of the said court, compensation was awarded to the owners of one strip of land taken in the sum of $12,025; at the October term, 1894, to the owner of another strip taken in the sum of $4,162.50; and at said October term to the owner of the third strip taken in the sum of $3,312.38. These awards aggregated the sum of $19,499.88. Thereafter the plaintiff in the present case became the assignee of all of said judgments and entitled to receive said aggregate sum. To raise said sum, in accordance with said ordinance, the city filed from time to time four supplemental petitions under section 53 of article IX of said Act (J. & A. ¶ 1443), with the results as above outlined in the ‘ ‘ statement of the ease.” It appears that the plaintiff, Mecartney, as assignee of said judgments, has had paid to him by the city on said judgments the total sum of $12,033.74, or nearly two-thirds of the aggregate amount of said judgments or awards. It further appears that under the fourth supplemental petition, filed by the city on January 25, 1910, an assessment was levied on certain sublots, mentioned in said statement of the case, in the aggregate amount of $7,783.60, for the purpose of paying the balance of said awards; that objections to the assessment were filed; that on June 14, 1910, the assessment was confirmed; that the objectors appealed to the Supreme Court of this State, which court in April, 1911, affirmed said judgment of confirmation (City of Chicago v. Willoughby, 249 Ill. 249); that said objectors by writ of error took the case to the Supreme Court of the United States; and that in November, 1914, said writ of error was by that court dismissed (Willoughby v. City of Chicago, 235 U. S. 45).
Section 1 of said article IX of the Cities and Villages Act of 1872 (J. & A. ¶ 1388) provides “that the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.” Section 2 (J. & A. ¶ 1389) provides that “when any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment or by special taxation of contiguous property, or general taxation, or both.” In the above cited case of City of Chicago v. Thomasson, 259 Ill. 322, our Supreme Court held (p. 327) that, at the time when said condemnation petition was filed, it was only under the provisions of said article IX of said Act that the city might condemn property for a local improvement; that said article provided for a purely statutory proceeding and was a complete code in itself; that under the statute payment might be made in any one of the modes provided, but that the adoption of any one or more of these modes by a local improvement ordinance excluded the idea of payment in any other manner. The court said (p. 328):
“We are unable to find in this act any authority for the entry of such a judgment as is prayed for by the petition under consideration. By voluntarily delivering possession of the strip sought to be condemned by the city, the owners of the lots in question established a relationship to the city in reference to this proceeding that was not contemplated by the statute, and thereby deprived themselves to some extent of the protection vouchsafed landowners by this statute in the matter of securing the payment of the damages awarded them. ’ ’
The court further said (p. .330, italics ours):
“Having consented that the city should immediately enter upon their property and take possession of and damage the same, the appellant and the other property owners voluntarily loaived their right to demand their award for damages before the land could be taken and the city thereupon acquired a vested right in the property. The owners, as is said in the Barbian case (80 Ill. 482) also acquired a vested right in the compensation, and the rights of both parties thereby became absolute and irrevocable except by common consent. The liability of the city, however, as to the manner in which payment for damages should be made ivas not changed. The agreement between the property owners and the city, whereby the city at once acquired possession and the right to take the property could not and did not change the terms and provisions of the original ordinance, which provided that the cost of the improvement should be paid for by special assessment to be levied upon the property benefited thereby to the amount that the same might be legally assessed therefor, the remainder to be paid by general taxation. While the property owners, on delivery of possession to the city, immediately acquired a vested right in their compensation, they did not acquire a right to have that compensation provided for and paid to them in any other manner than that specified in the ordinance. At the time possession was given the ordinance authorizing the improvement had been passed. Its terms were known and the condemnation proceeding's therein provided for had been begun. By thus delivering. possession to the city the property owners placed themselves without the provisions of the statute. * * * They were bound by the provisions of the ordinance, and, although out of possession, must aivait payment according to its term. However, they were not left remediless. They had.at hand the means to compel the city to perform any duty legally devolving upon it. If the city failed to exercise due diligence in making the assessment against the property specially benefited, it could, after demand, be compelled to do so by mandamus. * * * That the city has failed to exercise due diligence in proceeding to collect assessments with which to pay for the damages done in the taking of this property cannot be denied. For years at a time no steps were taken or attempted to be taken in this proceeding. This situation may be partially accounted for by the fact that appellant was all the time contending that his lots * * * (being the only ones specially benefited which had not been assessed) were not liable for special assessment in this proceeding, and it is possible that for this reason he did not desire to proceed by mandamus.”
Our conclusion is that, under the facts disclosed and because of the reasoning and holdings of our Supreme Court in City of Chicago v. Thomasson, supra, the trial court erred in entering against the city the general judgment appealed from. In- our opinion the court should have dismissed the suit. The questions as to the allowance of interest, costs and attorneys’ fees, much discussed in the briefs of counsel, need not therefore be considered.
The judgment of the tiircuit Court of Cook county is reversed.
Reversed.