Mecartney v. City of Chicago

Mr. Justice Baker delivered the opinion of the court. The ordinance in this case provided that the cost of the improvement should be paid by special assessment to the extent that property legally benefited thereby could be legally assessed, and that the remainder of such cost should be paid by general taxation. The ordinance in People ex rel. v. Hyde Park, 117 Ill. 462, and Hyde Park v. Corwith, 122 id. 441, provided that the entire cost of the improvement should be paid by special assessment. In each case the municipality, after the filing of the petition in the condemnation proceeding, took possession of the property. In the case first cited a mandamus to compel the municipality to pay the condemnation judgment was. refused. The ground on which such refusal was based was stated in the opinion, p. 469, as follows: “No street can be opened except under enabling ordinances and without such ordinance there can be no condemnation of property for public use by a city or village. There is and can be no doubt the mode of making payments for local improvements is within the discretion of the municipal authorities and that discretion is not subject to the control of the courts. Such improvements may be paid for in any mode provided by law, either out of the general fund, by special taxation, or special assessment, and the adoption of either mode excludes the idea of payment in any other way.” The case was followed in Hyde Park v. Corwith, supra, where a judgment in debt on a condemnation judgment was reversed. The mode of payment for the land to be taken for a street was fixed in advance by ordinance in this case as clearly and definitely as it was in the ordinances in the Hyde Park cases. We are unable to perceive any legal ground on which it can be held that the ordinance in the Hyde Park cases excluded any other mode of payment for the land taken than that provided in such ordinance, and that the ordinance in this case does not exclude any other mode of payment for the land taken than that provided in such ordinance. If the judgment is affirmed, the defendant will be compelled to pay, not the remainder of the cost of the land taken, left after assessing property benefited to the extent to which such property may legally be assessed, as the ordinance provides, but the entire cost of the land taken. We regard the decisions in the Hyde Park cases as controlling the decision in this case. They were held controlling in Meeker v. Chicago, 96 Ill. App. 23, where a judgment sustaining a demurrer to a declaration, in substance the same as the first count of the declaration in this case, was affirmed. The first count of the amended declaration alleges that the condemnation judgment was entered October 26, 1894, and the supplemental petition filed December 4, 1894. This action was begun November 21, 1895, within thirteen months of the date of the condemnation judgment. The amendment to the amended first count of the declaration filed October 5, 1907, alleges that December 4, 1894, “defendant filed in said condemnation proceeding a supplemental petition praying for the appointment of commissioners to make a special assessment upon the property benefited by said improvement, and said commissioners were appointed and an assessment roll was made by them; and thereafter, from time to time, defendant took various steps in said proceedings, but failed to prosecute the same with reasonable diligence and to collect the same; but on the contrary has abandoned the said proceedings, and has taken no steps whatever in such proceedings, for many years last past, to-wit, for more than four years last past.” All the pleadings in an action at law relate to the commencement of the action, the same as if all were filed at that time, and the rights of the parties are to be determined by the state of facts as they existed at the time the action was commenced. The first count as amended does not allege that the special assessment proceedings were abandoned before this action was begun, but alleges that they were abandoned after the action was begun. If, however, the amended first count can be construed to aver that the special assessment proceedings were abandoned before this action was commenced, the count would still be fatally defective. The ordinance providing for the taking of plaintiff’s land must, under the allegations of the count, be held to be still in force, and while that ordinance remains in force it excludes any other mode of payment for the land taken than that provided by the ordinance. People ex rel. v. Hyde Park, supra. No count of the amended declaration, in our opinion, states a cause of action against the defendant, and the judgment of the Circuit Court will be reversed and the cause remanded, with directions to sustain the demurrer to the amended declaration. Reversed and remanded with directions.