Schemick v. City of Chicago

Mr. Justice Shope

delivered the opinion of the Court:

This was a supplemental proceeding, under section 53, article 9, of the Cities and Villages act, for the assessment of benefits conferred upon adjacent property by the opening of Champlain avenue, in the city of Chicago, to pay compensation awarded in a proceeding to condemn the land necessary to the opening of said street. Commissioners were appointed, who finally, on January 14, 1893, returned an assessment roll which was confirmed by the court, and from which judgment of confirmation this appeal is prosecuted by appellant, land owner. Appellant was defaulted.

I. It is first objected, that the affidavit showing the mailing of notice to the owners whose premises had been assessed ivas insufficient to give the court jurisdiction. The record shows the posting of notices of the final hearing upon the assessment roll, at the February term of the Cook County Circuit Court, commencing on the 20th day of February, 1893; and publication of the like notice in a daily newspaper, printed and published in the city of Chicago, for five consecutive days, in full compliance with the 2d clause of section 27, article 9, of the Cities and Villages act. The objection to the affidavit of mailing the notice is, that it purports to contain a copy of the notice sent, which fails to state the year in which the February term, to which the assessment roll had been returned, occurred. The objection is not well taken. Section 28, of article 9, requires, that on or before the final hearing the affidavit of one or more of the commissioners shall be filed, stating that they have sent, or caused to be sent, by mail,, to the owners whose premises have been assessed, and whose names and places of residence are known to them, the notice required by section 27. The affidavit, as filed, is in compliance with the provisions of the statute. It is not requisite that the affidavit should contain a copy of the notice mailed; and but for the statement added to the affidavit, that “a substantial copy of said notice is as follows,” then adding the notice, prescribed by the 1st clause-of section 27, there would be no objection to the affidavit. We are inclined to hold with the Appellate Court of the First District (Falch v. The People, 8 Brad. 351), that this does not vitiate the affidavit, and may be treated assurplusage.

It is next said, that the affidavit was insufficient, in that it conveyed no information as to what the notices mailed contained. There is no such requirement in the statute. All the statute requires is, as we have seen, that the affidavit shall state that the commissioners have sent, or caused to be sent, by mail, the notice required by the statute to be-sent to owners, etc. And it is expressly provided, section 28, that such affidavit shall be received as prim,a facie evidence of compliance with the act, in regard to giving such notice. In the absence of anything showing that the proper notices were not sent or received, the prima facieshowing made by the affidavit must prevail.

II. It is next objected, that the commissioners appointed by the court to re-cast the assessment did not act, etc. . It appears, that the first and second assessment rolls returned were not approved, and that the same were ordered by the-court to be re-cast. In the first order appointing commissioners, Fred. K. Boot, John Meyer, and Henry C. Muhlke were appointed. Subsequently, in the final order entered for re-casting the assessment, December 17, 1892, the name “George” Meyer was inserted instead of John Meyer,, the order being as follows: “Ordered, that the com missioners heretofore appointed herein, to-wit: Fred. K. Root., George Meyer, and Henry C. Muhlke re-cast said assessment.” The persons theretofore appointed had been said Root, John Meyer, and said Muhlke. Fred. Iv. Root, John Meyer, and Henry C. Muhlke, as commissioners, re-cast and returned the assessment roll, which was confirmed. It is not questioned that the person appointed by the court to act did act in obedience to its order, and that the insertion, of the name “ George,” instead of John, was a mere clerical error. The court having ordered, that “the commissioners heretofore appointed” re-cast the assessment roll, the repetition of their names was unnecessary.

III. It is next objected, that the commissioners did not take the oath required by the statute, before proceeding to re-cast the assessment. The record clearly shows, that the same commissioners acted throughout, under the order of the court, in making and re-easting the assessment roll. Before proceeding upon their duties, in the first instance, they took and subscribed the oath required by section 23, of said article 9, of the Cities and Villages act. No objection is made to the oath as thus taken, but it is said they should have re-taken the oath before re-casting the assessment. This was not necessary. By their oath, they were required to make a true and impartial assessment of the cost of the improvement, etc. Where the same commissioners, thus sworn, are ordered to re-cast the assessment, no further oath will be necessary to qualify them to act. The assessment roll would be returned, as re-cast., under their oath as commissioners.

IV. It is also objected, that the court erred in setting aside the former assessments, upon objections thereto, made by persons other than appellant. Upon objection being made to the first assessment roll returned, leave was granted to the city to withdraw it; and upon objection to the second assessment roll returned, the court, as we have seen, ordered it to be re-cast by the commissioners theretofore appointed. Ample power is given by section 33, of said article 9, for the court, at any time before final judgment, to cause the assessment to be rc-cast, by the same commissioners, “whenever it shall be necessary for the attainment of justice,” etc. It does not appear by this record what xeason existed for the order of the court in the premises, and it must be presumed that the court acted, in ordering the re-casting of the assessment, upon sufficient cause and within the power conferred. Moreover, it does not appear, that the sum to be assessed against property benefited ivas increased, or that appellant’s property was assessed more by the re-casting of the assessment, than it was in the assessment rolls originally filed, and appellant, not having been prejudiced, is, therefore, in no condition to complain. It is clear, therefore, that the case of DeKoven v. Lake View, 131 Ill. 541, cited by counsel, can have no application.

Finding no substantial error in the record, the judgment of the Circuit Court will be affirmed.

Judgment affirmed.