Barber Asphalt Paving Co. v. City of Chicago

Mr. Justice Freeman delivered the opinion of the court. It is first contended in behalf of the city of Chicago that the special assessment vouchers in controversy are payable solely out of their respective special assessment funds, and that the city cannot legally pay them out of its general funds, inasmuch as section 90 of the Local Improvement Act (R. S. chap. 24) provides that persons accepting the vouchers “shall have no claim or lien upon the city, town or village in any event for the payment of such vouchers or bonds or the interest thereon, except from the collection of the assessments, against which such vouchers or bonds are issued.” The municipality is required by said act to use “ all reasonable diligence as far as it can legally do so” to cause valid special assessments to be levied and collected to pay such bonds and vouchers until they shall all he fully paid. The vouchers now in controversy contain a provision signed by the payees therein, wherein the latter accept the same in full payment of the amount in said vouchers named and relinquish all claims or liens against the city for the work therein mentioned or for the payment of the vouchers except from the collection of the warrant in said voucher named. It does not follow, however, that where a deficiency in the special assessment funds applicable to the payment of the vouchers is caused by reason of an unlawful diversion and misapplication by the city of such funds from the purpose for which they were collected, thus leaving such vouchers unpaid, that the holder cannot recover from the city. The same contention made in behalf of the city was considered in City of Chicago v. Union Trust Company, 138 Ill. App., 545. There also it was insisted that vouchers of this kind “are payable solely out of their respective special assessment funds and the city of Chicago cannot legally pay them out of its general funds,” that there were no such funds in the city’s hands and that the city had no power to appropriate any for payment of the vouchers. In that case we held that, there being evidence tending to show the city did in fact hold funds to the. credit of the warrants which upon a proper accounting should he applied in payment of the vouchers, the fact that the city had disbursed such funds for other and improper purposes did not relieve it from the obligation to account for and pay them to the respective voucher holders, so far as applicable. If the city has in fact collected the assessments for payment of the vouchers as the statute requires, it is bound to pay them “from the collection of the assessments” against which such vouchers or bonds are issued, and is not relieved of its liability to account for such funds as trustee thereof because of its own improper administration of them. It is further argued in behalf of the city that where rebates to property owners have been paid before the cost of the improvement had been paid for, no liability is thereby created against the general funds of the city, that this is one of the risks which the contractor or voucher holder assumes when he agrees to look to the special assessment funds alone for payment and not to the general funds of the municipality. In this contention we have heretofore stated our inability to concur. City of Chicago v. Union Trust Company, supra. The vouchers to which this contention is sought to be applied are referred to in the stipulation as class A. As to them it is stipulated that the city has collected sufficient moneys to pay them, but has applied the money so collected to another purpose, namely, payment of rebates to property owners assessed for the improvement, before the payment of the cost of the improvement itself. As to these specific vouchers it is conceded that the amount applied in payment of such rebates exceeds the amount due on the vouchers. It is apparently conceded that these rebates were irregular and improper, and it is, we think, clear that no official of the special assessment department of the city could lawfully reduce or modify in any way the assessment as confirmed by the court. Counsel for the city, however, maintain that whether such rebates were properly or improperly made is wholly immaterial because of the statutory provisions which it is claimed compel the voucher holders to look for payment solely to the special assessment fund, and it is argued that such voucher holders assume all risk of the city’s failure properly to administer the assessment funds. The very statement of this proposition would seem to carry its own refutation. . It is the duty of the city to pay rebates to the property owner under the conditions prescribed by statute, that is when “there shall be any surplus remaining of said special assessment over and above the payment aforesaid.” (Article IX of the Cities and Villages Act, section 65.) It is not the voucher holder but the city which must be "deemed accountable for official mistakes of its officers in administering the fund. It is the city, not the voucher holder, which as trustee must be deemed responsible for its own administration of the fund of which it is custodian. Potter v. Whatcom, 20 Wash., 589. The voucher holder has a right to rely upon the proper administration by the city of the fund out of which his voucher must be paid. We discover nothing in the express language nor manifest intent of the statute which is properly subject to any other interpretation. As said by Mr. Justice Brown of the Ajipellate Court of this district in City of Chicago v. Richard F. Conway, 138 Ill. App., 320: “We are of opinion that the city as trustee and bailee of this fund is directly liable to the appellee up to the amount of the obligations held by him, if the fund in its hands out of which said obligations are by their terms to be paid is actually in its hands or is constructively in the purview of the law so in its hands.” And it is further said in the opinion in that cause that the city is not in a situation to claim that amounts so “rebated” or “refunded” or “abated” “were anything but unlawful and unwarranted disbursements from the fund which belonged to the obligation holder. If they were unlawful and unwarranted disbursements, they were unlawful diversions, and if the amount of them was unlawfully diverted, it was, when demanded by the appellee from the city, unlawfully withheld from him.” What is said in Warner v. New Orleans, 167 U. S., 467, is, we think, in point: “One who purchases property and pays for it in warrants drawn upon a particular fund the creation of which depends largely on his own action, is under an implied obligation to do whatever is reasonable and fair to make that fund good. He can not certainly so act as to prevent the fund being made good and then say to his vendor: ‘You.must look to the fund and not to me.’ ” We deem it unnecessary to distinguish cases cited by the defendant city in support of the views urged by its counsel, such as city of Alton v. Foster, 207 Ill., 150-161 ; City of Chicago v. Brede, 218 Ill., 528, and others. It suffices to say' we do not regard them in point in this controversy. What was said by this court in City of Chicago v. Singer, 116 Ill. App., 559-563, is, we think, in large measure applicable in the case at bar. See also City of Chicago v. McCormick, 124 Ill. App., 639. It is contended in behalf of the city that special assessment vouchers are not limited to payment from the installment of an assessment against which they may be issued, but may be paid out of any installment at any time, without reference to whether such payment out of another installment, may have the effect to absorb all the fund against which other vouchers may be outstanding. In City of Chicago v. Union Trust Company, supra, we had occasion to consider this question and expressed the opinion “that each installment is properly chargeable only with its own expenses” in view of the provisions of the statute. Payment of “any voucher or bond out of an installment having a surplus to its credit, other than the one against which the same is issued” is provided for by section 86 of the Local Improvement Act of 1897. Where there is no such surplus such provision is inapplicable. In the present case that provision of that Act is not applicable, these assessments having been confirmed before its enactment. Sections 63 and 64 of article IX, Cities and Villages Act, are applicable in this case and, in our opinion, are not subject to any such interpretation, as counsel for the city seem to claim. It is further urged in behalf of the city that “where a municipality in default of other bidders becomes the holder of tax certificates on property sold to enforce the collection of delinquent special assessments, such tax certificates cannot be treated as cash assets in the special assessment funds; nor is a municipality liable out of its general funds to holders of special assessment vouchers to the amount of such tax certificates.” It appears from the agreed statement of facts that in cases where property assessed for improvements in payment for which some of the vouchers sued upon were issued, has been returned delinquent for non-payment of such assessments the city, in default of other bidders, has become the purchaser of such delinquent' property at the sale and has acquired tax certificates therefor; that in each case the amount due on such tax certificates is in excess of the amount remaining unpaid on said vouchers; and that the city has not paid into the said respective special assessment funds the amounts which it bid for such pieces of property respectively. It is urged in behalf of the city that inasmuch as it is “but an instrumentality selected by the law to receive payment of the special assessment from the property owners and to pay the same to the holders of the vouchers” (Village of Wilmette v. People, 214 Ill., 107-111) the city acquired these tax certificates only in a trust capacity for carrying out the provisions of the special assessment act and not in its general corporate capacity. The distinction is, we think, attempted where there is no difference. The provisions of sections 70, 71 and 72 of the Local Improvement Act authorize the city in default of other bidders to become a purchaser at sales of property to enforce collection of any tax or special assessment, and make “the general revenue laws” of the State “and all other laws in relation to the enforcement and collection of taxes and redemption from tax sales” except as in the Local Improvement Act provided, “applicable to proceedings to collect such special assessments and special taxes.” Sections 206 and 207 of the Revenue Act provide for resale of the property in case the purchaser at such sale shall fail to pay the amount and for delivery of the certificate of purchase to the purchaser, which certificate is required to recite the amount of the “special assessments, interest and costs for which the same was sold, and that payment has been made therefor.” We concur therefore in the plaintiff’s contention that having taken out tax certificates reciting that it has paid the amount of the assessment, interest and costs, the city is estopped from contradicting such recitals, that the judgment confirming the assessment must be deemed satisfied by the sale and purchase and the city thereafter becomes liable to apply the amount of the purchase to the assessment fund and in payment of liabilities against such fund. As we said in City of Chicago v. Union Trust Company, supra: “If such sale is made to a private individual he would be required to pay the amount bid at the sale upon receiving his certificate of purchase or a tax deed. No reason is apparent why there should be any distinction between a municipality and an individual in this respect.” It is contended that the city is not liable for interest- on vouchers after their maturity. In City of Chicago v. Conway, supra, it was held that the municipalities become “liable for interest in three cases—where there is an express agreement, where money has been wrongfully obtained by them and where money is illegally withheld by them,” citing Vider v. City of Chicago, 164 Ill., 354; City of Peoria v. Construction Co., 169 Ill., 36; City of Danville v. Danville Water Co., 180 Ill., 235. In the case at bar the amounts refunded to the property owners and the amounts which should have been applied by the city in payment of its purchases at tax sales in cases where the vouchers in controversy are unpaid were, we think, “illegally withheld” when the city refused payment of the vouchers at their maturity. For reasons indicated the judgment of the Superior Court will be affirmed. Affirmed.