Wheeler v. City of Chicago , 24 Ill. 105 ( 1860 )

Catón, C. J.

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; but the most embarrassing question in these cases is to determine whether these declarations show that the proceedings were regular for opening this street, and the levy of this assessment, and this depends upon the construction to be given to the word shall, in the last sentence of the tenth section of the sixth chapter of the city charter. The sentence is this : “ when completed, the commissioners shall sign and return the same to the common council, within forty days of their appointment.” In this case, the common council extended the time for the return of the assessment roll beyond the forty days, and within the extended time, the return was made. If this provision was designed by the legislature to be imperative, then the return made after the time specified had expired, was illegal, and the assessment was void; and the whole proceeding fell with it; and if that was so, no right accrued to the city to open the street, and consequently, no implied assumpsit arose, that it would collect and pay over the assessment. But if the return was in time, then the right vested in the city to open the street, and the duty devolved upon it to collect the assessment within the time authorized by law, and to pay it over to the parties to whom it was awarded by the commissioners.

We entirely concur in the remark, that this statute, under which the property of the citizen is to be taken from him for the use of the public, is to be strictly construed, and must be complied with in all its essential provisions, or the whole proceeding is void; but the inquiry still occurs, what is the provision of this statute ? What did the legislature mean by it? In other words, is this enactment imperative, or permissive or directory ? The word may is construed to mean shall, whenever the rights of the public, or third persons, depend upon the exercise of the power or the performance of the duty to which it refers. And so, on the other hand, the word shall may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction; but if any right to any one depends upon giving the word an imperative construction, the presumption is, that the word was used in reference to such right or benefit. But where no right or benefit to any one depends upon the imperative use of the word, it may be held to be directory merely.

The general revenue law prescribing the time within which the assessment should be returned, we held to be imperative, and that an assessment returned after the time appointed by the law, was absolutely void, and the reason for so holding was, that the person assessed “ would lose the benefit of an appeal from the assessment; for the statute expressly provides that no application to reduce the valuation shall be made after the June term of the court.” And the same reason was assigned for a similar ruling in the case in 7 Conn., referred-to in the opinion of the court in that case. But in Pond v. Negus, 3 Mass., the question arose upon an assessment which was made after the day fixed by the law, and as nobody could have derived any advantage from the assessment having been made within the time, and there being no negative words in the statute, it was construed as directory, and an assessment made subsequently, was held good. The court said, “ And although the assessors are directed to assess the tax within thirty days after the certificate, yet there are no negative words restraining them from making the assessment afterwards; and accidents might happen which would defeat the authority if it could not be exercised after the thirty days.” These remarks are pertinent to the case at bar. So in Colt v. Eves, 12 Conn. 243. There the statute required jurors to be selected on a particular day, and the court held that they might be selected on a subsequent day. The court held that the duty which was imposed to select the jury, was imperative, but that the time fixed was directory. In commenting upon the case in 7 Conn., above referred to, the court said, “ The principle there assumed seems to be that where the object contemplated by the legislature could not be carried into effect by another construction, then the time prescribed must be considered as imperative, but where there is nothing to indicate that the exact time was essential, it should be considered as directory.”

These cases serve as examples of the two classes of decisions which are very numerous, and leave the principle on which they depend as clearly defined as almost any other rule for construing statutes. By the application of this rule to this statute, it was very clearly not the intention of the legislature to make the time specified for the return of the assessment roll indispensable to the validity of the proceedings.. There are no negative words used, declaring that the functions of the commissioners shall cease after the expiration of the forty days, or that they shall not make their return after that time. Nor have we been able to discover the least right, benefit, or advantage, which the property owner could derive from having the return made within that time, and not after. No time is limited, and made dependent on that time, within which the owner of the property may apply to have the assessment reviewed or corrected. The next section requires the clerk to give ten days’ notice that the assessment has been returned, specifying a day when objections may be made to the assessment, before the common council, by parties interested, which hearing may be adjourned from day to day, and the common council is empowered in its discretion to confirm or annul the assessment altogether, or to refer it back to the same commissioners, or to others, to be by them appointed. As the property owner has the same time and opportunity to prepare himself to object to the assessment, and have it corrected, whether the return be made before or after the expiration of the forty days, the case differs from that of Chesnut v. Marsh, at the very point on which that case turned, nor is there any other portion of the charter which we have discovered, bringing it within the principle of that case, which is the well recognized rule in all the books.

This is the only objection which has been pointed out as appearing on the face of these declarations, to the validity of this assessment. If there is anything else which will render the proceeding void, and show that the city acquired no right to the land proposed to be taken for the street, that can be shown in the defendant’s pleas. We think the demurrers should have been overruled. The judgments must be reversed and the causes remanded, with leave to the defendant to plead.

Judgments reversed.