Village of Morgan Park v. Gahan

Mr. Justice Wilkin delivered the opinion of the Court: The validity of the ordinance authorizing the laying of said water-pipes, and providing that they should be paid for by special assessment, is not questioned; neither is it denied that, in making proposals for bids on said improvement the village had a legal right to require a deposit with bids, to be forfeited on the conditions stated in the said published offer and the ordinance referred to therein. Appellees do not controvert the proposition that the offer by the village board, their bid, and the acceptance of such bid, constituted a prima facie valid. agreement, by which said sum of $1100 would be forfeited to the village on their refusal to enter into a contract in accordance with said bid and said ordinance, but they base their right of recovery upon the single ground, that at the time they bid there was no legal assessment existing out of which to pay for said work and material, and that they did not learn that fact until after their bid had been sent in. Gahan testified, at the trial, that his attorney advised him to have nothing to do with the assessment, “on the ground that it was not according to law, ” and says, “that was the reason we refused to enter into the contract.” No attempt was made on their behalf to show that appellees objected to the regularity of any assessment made previous to their bid, or that the village authorities refused to make any and all necessary re-assessments, in order to secure them in full payment for all work and material which they might furnish in fulfillment of their bid. There is no pretense that the village authorities were at any time guilty of misconduct, fraud or concealment in dealing with appellees. In fact, so far as the proof goes, they had as much knowledge of the various steps taken by the village in levying the special assessment before they made their bid as afterward. All they claim is, that they afterwards learned such proceedings were “not according to law.” There is noth-■ ing in the proposition published by the village, or in any of .its ordinances, indicating that the contract price for the improvement would be paid from funds raised by any particular assessment, nor did appellees attempt to show that they were in any manner whatever led to suppose or understand so. It can not therefore be said that a particular assessment entered into the contract created by said offer, bid and acceptance. The case, then, viewed in the most favorable light for appellees, resolves itself into the question, did the fact that an assessment, made previous to their bid was irregular or void, justify them in refusing to carry out their contract with the village. This question waives all consideration of the right of the village to insist that it was the duty of bidders to use diligence to ascertain the validity of such assessment, and therefore it will not be necessary for us to pass upon the various objections urged against the regularity of the proceedings under which the assessment was levied. ■ We entertain no doubt that, under the law, neither the village nor appellees were concluded by that assessment in entering into and carrying out the contract made by the parties, as above stated. It will scarcely be contended, that if appellees had entered into the contract and gone on with the improvement, and the assessment had proven so irregular as that it could not have been collected, appellees would thereby have been deprived of receiving compensation for their work according to the terms of their contract,—in other words, their conclusion, or that of their attorneys, as to whether an assessment was lawful or unlawful, would in no way bind them or the village. If, when they had completed the contract upon their part, the assessment proved illegal, and therefore unavailing as a fund to pay them the contract price for their work and material, the village board would have been bound to make another assessment, or any number of additional assessments, necessary to raise funds to pay for said improvement by special assessment, as provided in the ordinance authorizing it to be made. Section 46, article 9, chapter 24, of the City and Village act, provides: “If any assessment shall be annulled by the city council or board of trustees, or set aside by any court, á new assessment may be made and returned, and like notice given and proceedings had as herein required in relation to the first; and all parties in interest shall have the like rights, and the city council or board of trustees, and court, shall perform like duties and have like power in relation to any subsequent assessment, as are hereby given in relation to the first assessment.” The next section also provides, that if the first assessment proves insufficient, a second may be made in the same manner, as nearly as may be, and so on until sufficient moneys shall have been realized to pay for such public improvement. And so the next section also provides, that in a certain contingency new assessments may be made at any time within five years after the confirmation of the original assessment. These various sections expressly provide an adequate remedy for any one who shall have contracted with a city or village to be paid out of a special assessment, in all cases wherein any assessments shall prove insufficient to meet the obligation of the city or village. They expressly provide, that while one contracting with a city or village, and agreeing to be paid from special assessments, has no claim or lien upon the city or village except from the special assessments made for the work contracted for, the city or village is always bound to see that a valid assessment is made and collected. There is neither reason nor authority for holding that a contract for a public improvement, to be paid for by a special assessment, can be lawfully abandoned by a contractor, if at any time he discovers an irregularity in the assessment made to pay for such improvement, and to lay down such a rule would be most dangerous, both to municipalities authorized to make such contracts, and to contractors. It being admitted in this case that appellees made no request or demand upon the village board to make an additional assessment, if one was necessary, and there being no pretense that it refused to take any and all necessary steps to make available a special assessment levied on the property to be benefited by said improvement, to carry out to the letter a contract on its part entered into according to the terms of its ordinance, its offer and the bid of appellees, there is nothing in this record to show that it was in any way in default at the time appellees refused to enter into the contract; and having expressly contracted that upon their refusal to make a contract according to their bid and the terms of said ordinance, the amount deposited by them should be forfeited to the village, we are unable to perceive upon what principle they can claim to recover it back. The rule that courts incline against forfeitures has no application to this case. There is no question of construction here involved, and it is well settled' that that rule will never be carried to the extent of - relieving parties against the express terms of their own contract. Brink v. Steadman et al. 70 Ill. 243. The tenth proposition asked by appellant announced a correct rule of law applicable to the facts of this case, and it was error to refuse it. It may be remarked, that, on their own theory, appellees fail to show how they could have been injuriously affected by the attempt of the village board to have the assessment made payable by installments. If, as they contend, the act of 1874, ;under which that attempt was made, had been repealed prior to the passage of that ordinance, then all that was done under it was void, leaving the rights of all parties unaffected thereby, .As before stated, this record fails to show that any action was ;had by the county court on the supplemental petition. For these additional reasons, therefore, the question of the repeal of the statute of 1874 is not involved in this case. The judgments of the Appellate and Superior Courts are-reversed, and the cause remanded to the latter court for further proceedings not inconsistent with this opinion. Judgment reversed,