Little v. City of Chicago & The Ewing Avenue Railway Co.

Mr. Justice Waterman. The assessment, the payment of which appellant now seeks to enforce, proceeded upon the theory that the railway company had a franchise, and in connection therewith, in and upon Commercial avenue, an easement, the value of which was enhanced by the improvement to defray the cost of which the assessment was made. If the railway company had there a real property interest which could be assessed for a real property improvement, it is not made clear why such property interest might not be, under the assessment proceedings, sold. Whether a purchaser at such sale would acquire anything of value to him, might depend upon a variety oE circumstances; but it would seem that such valid sale would at least deprive the railway company of a thing of value to it, viz., its right of user. That such a property as was possessed by this railway company in and upon Commercial avenue may be assessed for an improvement beneficial to such property, is unquestionable. City of Chicago v. Baer, 41 Ill. 306; Chicago City Ry. Co. v. City of Chicago, 90 Ill. 575; Parmalee v. City of Chicago, 60 Ill. 267; Prov. Gas Co. v. Thurber, 2 R. I. 15-21. Where railway property such as this is specially benefited by an improvement, it is not only the right, but the duty of the municipal authorities to include it in the assessment made upon property benefited, and an omission to do so may render the assessment upon other property invalid. Chicago v. Baer, supra. The right to assess presupposes not only that the property assessed will be benefited to the amount of the assessment, but that the assessment may be enforced by a sale of the property upon which it is made. If the property assessed can not be sold thereunder, then its collection will have to depend upon the ability of the authorities to obtain judgment against the party liable to pay the same, and collect it’ out of other property which he may have; but suppose he has no other property, or none out of which the execution can be made. Is the validity of the assessment to depend upon the ability of the authorities to collect it out of property not benefited ? Appellant contends that the village should have proceeded to collect the amount of the assessment under the provisions of Sec. 52 of Art. 9, Chap. 24 of the Revised Statutes, authorizing the collection by suit of the amount of any assessment from any person liable for the payment of the same; but appellant has not shown that if such a judgment had been obtained, it could have been collected. If the village of Hyde Park was guilty of negligence in not collecting this assessment, and appellant is entitled to maintain an action against the city therefor, the appropriate action would seem to be one of case for negligence, or perhaps by mandamus to compel it to do its duty. In Higgins v. The City of Chicago, 18 Ill. 276, a peremptory writ of mandamus was awarded, commanding the city to proceed with the collection of an assessment to the benefit of which the relator was entitled. In Clayburgh v. The City of Chicago, 25 Ill. 440, it was held that an action of case would lie against a municipal corporation for a failure to collect an assessment to the benefit of which the plaintiff was entitled. In Wheeler v. City of Chicago, 24 Ill. 105, the court said : “ We have no difficulty in saying that an action may be maintained upon the implied assumpsit of the city to collect the assessment and to pay the amount awarded to property holders for opening a street.” In the present case, appellant’s contract with the village of Hyde Park provided that it should not be liable in any event by reason of the invalidity of the special assessments or of a proceeding therein, or for failure to collect the same; and appellant did not upon the hearing below, show that the property of the railway company assessed was specially benefited by the improvement. He seems to have relied, upon the confirmation of the assessment by the County Court. Such confirmation was not only had in a proceeding in rem, but appellant admits that by the sale that judgment wasy>rima facie satisfied. Moreover, when “ there is an incomplete decree and it is ineffective for want of the provision of any means fór its execution, and an application is made to a court of equity' to supply the imperfection so as to render the decree effective, then it is admissible to look at the real nature and character of the decree, as it may appear in the light of surrounding circumstances, for the purpose of determining whether there'is such an equitable ground for action as will move a court of equity to interpose.” Wadhams v. Gay, 73 Ill. 415. So here, it was binding upon appellant, if he wished for the aid of a court of equity to collect this assessment, to show that it was just and equitable, as well as properly and validly made. The decree of the Circuit Court dismissing the bill is affirmed. Decree affirmed.