Rienzi Co. v. Commissioners of Lincoln Park

Mr. Presiding Justice Gridley delivered the opinion of the court. It is contended that the court erred in dismissing the bill as amended, and in not dismissing the cross-bill for want of equity. Section 21 of the act entitled “An Act to fix the boundaries of Lincoln Park in the City of Chicago, and provide for its improvement,” approved and in force February 8, 1869, provided, among other things, that the Commissioners of Lincoln Park shall in regard to said park “possess all the power and authority now by law conferred on or possessed by the common council of said city in respect to the public squares and places in said city.” Section 17 of said act required the commissioners each year to make an estimate of the amount necessary to be expended for the improvement and repair of said park and drive during the next succeeding year and to certify the same to the county clerk, to be by him extended, as a “Lincoln Park Tax, ’ ’ upon the taxable property in the towns of North Chicago and Lake View; and it is therein further provided that the taxes so collected shall be paid tb the commissioners and used by them in improving and keeping in repair the park and drive. By section 2 of the Act of April 19, 1869, said section 17 was repealed, and the commissioners were directed to make an estimate of the amount of money required to pay any debt falling due during the next year and for the improvement,’ maintenance and government of Lincoln Park during the next succeeding year, which estimate shall be certified to the supervisors of said towns, who shall determine the amount of tax necessary for the purpose and certify the same to the county clerk, who shall extend the same as a “Lincoln Park tax,” and the “taxes so levied and collected shall be paid to the Commissioners of Lincoln Park and by them applied to purposes aforesaid.” On April 9, 1879, the Legislature passed an act entitled.“An Act to enable Park Commissioners or Corporate authorities to take, regulate, control and improve public streets leading to public parks; to pay for the improvement thereof, and in that behalf to make and collect a special assessment or special tax on contiguous property.” (Laws Ill. 1879, p. 216.) Sections 1 and 2 of said act were amended by an act approved June 27, 1885. (Laws Ill. 1885, p. 225.) Section 1 (as amended) provided, in substance, that every board of park commissioners shall have power to connect any public park, boulevard or driveway under its control with any part of any incorporated city, town or village, by selecting and taking any connecting street or streets, or part thereof, leading to such park, providing there be first obtained the consent of the corporate authorities having control of such street or streets, and also the written consent of the owners of a majority of the frontage of the lots and lands abutting on such street or streets so far as taken. Section 2 (as amended) conferred power on such board of park commissioners to improve, maintain and repair such street or streets as they might deem best, and such board were authorized from time to time to levy or cause to be levied or collected a special tax or assessment on contiguous property abutting on such street so improved, “for a sum of money not exceeding the estimated cost of such improvement or improvements and for the future ■maintenance and repair thereof, as shall be ordered and estimated by such board of park commissioners”; and to that end it was further provided therein that such board should have all the power and authority then or thereafter granted to them relative to the levy, assessment and collection of taxes or assessment for corporate purposes. Said act (as so amended) was in force when the ordinance of December 20, 1886, and the amendatory ordinance of May 2,1887, were passed by the Board of Trustees of the Town of Lake View. It is quite probable that the provision in the amendatory ordinance of May 2, 1887, ceding control of said portion of Diversey street to the Lincoln Park Commissioners upon condition that “the cost of all improvement, and repairs and maintenance” of the boulevard should be paid by the owners of property abutting thereon, “to be assessed and collected on said abutting property in the manner provided by lam,” had reference to the provision contained in said section 2 (as amended) relative to “future maintenance and repair. ’ ’ By- an act of the Legislature, approved June 16, 1887, said section 2 was again amended, and boards of park commissioners were authorized to cause to be levied and collected a special tax or assessment on contiguous property “for a sum of money not exceeding the estimated cost of such first improvement or improvements as shall be ordered and estimated by such board of park commissioners, but not for any subsequent care, maintenance or repair thereof(Laws Ill. 1887, p. 247.) Said section 2 was further amended by an act of the Legislature, approved May 25, 1909 (Laws Ill. 1909, p. 294), but the words last above quoted were unchanged. On June 17, 1893, the Legislature passed an act entitled “An Act to authorize corporate authorities having jurisdiction and control of parks and boulevards to levy a special tax upon contiguous property abutting on boulevards and pleasureways, for the maintenance and repair thereofIn the case of Crane v. West Chicago Park Com’rs, 153 Ill. 348, our Supreme Court at the October term, 1894, decided that said act was unconstitutional and void. The court, quoting from Hammett v. Philadelphia, 65 Pa. St. 155, said (p. 353): “Repairing streets is as much a part of the original duty of the municipality—for general good—as cleaning, watching and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments.” During the year following the decision in the Crane case, supra, the Legislature, on June 21, 1895, passed an act entitled “An Act to enable Park Commissioners or park authorities to take, regulate, control and improve public streets, and to pay for the improvement thereof.” In section 2 of the act it is expressly provided that “no such special tax, or special assessment, shall be levied for the maintenance and repair of said improved street, but the same shall be maintained and repaired by said park boards or park authorities as in other cases.” (Laws Ill. 1895, p. 291.) From the above we think it appears that, by the public policy of the State, park commissioners have not had, at least since the adoption of the Constitution of 1870, power or authority to compel abutting property owners ,by special assessment to pay for the maintenance or repair of a boulevard after the making of the initial improvement, but that the expense of such maintenance or repair must be met by general taxation. And we are of the opinion that the agreement of November, 1887, is without consideration and contrary to public policy. The court found in the decree that on June 7, 1887, the Commissioners of Lincoln Park accepted the ordinance of December 20,1886, as amended by the ordinance of May 2, 1887. This acceptance was prior to the date of the agreement, and by virtue of the acceptance it became the duty of the commissioners, after the making of the initial improvement, to maintain and Tceep in repair said portion of Diversey street as a boulevard. (City of Alton v. Hope, 68 Ill. 167, 169.) The doing by the commissioners of acts which they were required to do by law is not a consideration for the promise of Affeld and others. (20 Am. & Eng. Encyc. Law, 2nd Ed., 1159; City of St. Louis v. The Maggie P., 25 Fed. Rep. 202; Randolph County Com’rs v. Jones, 1 Ill. 103.) It is contended by counsel for the commissioners that, under the doctrine that a municipality may accept aid from individuals in making an improvement to a street, the contract in question is valid and may he enforced. We do not think that the cases cited in support of the contention are in point. They are cases where the contracts were made with reference to contemplated improvements. The contract in question has reference to the future maintenance of the street, not to the improvement thereof. Our conclusion is that the court erred in dismissing the bill of The Rienzi Company for want of equity and in entering the decree on the cross-bill in favor of the Commissioners of Lincoln Park. The decree is reversed and the cause remanded with directions to dismiss the cross-bill for want of equity, and to enter a decree in favor of The Rienzi Company, complainant, in accordance with the prayer of its bill as amended. Reversed and remanded with directions.