Doremus v. City of Chicago

Mr. Justice Wieicin

delivered the opinion of the court:

It is insisted by the city, appellee, that the action of the county court in refusing judgment and order of sale in 1895 was, in effect, a setting aside of the original assessment, rendering the confirmation void, and thus authorized appellee to pass a new ordinance and levy a new assessment under section 57 of the Local Improvement act of June 14, 1897. On the other hand, it is insisted by appellants that the proceedings to make the new assessment could only have been under the provisions of section 60 of the act of 1897, and that under it the new assessment was void because not made within five years after the confirmation of the original assessment, and is therefore barred by the Statute of Limitations.

Section 46 of the act of 1872 is substantially identical with section 57 of the act of 1897, as follows: “If any assessment shall be annulled by the city council or board of trustees, or set aside by any court, a new assessment may be made and returned, and like notice given and proceedings had as herein required in relation to the first,” etc. (Hurd’s Stat. 1903, p. 404.) Section 48 of the act of 1872 is substantially identical with section 60 of the act of 1897, and is as follows: “If from any cause any city * * * shall fail to' collect the whole or any portion of any special assessment * * * which may be levied,' which shall not be canceled or set aside by the order of any court, * * * the city council * * * may, at any time within five years after the confirmation of the original assessment, direct a new assessment to be made upon the delinquent property for the amount of such deficiency and interest thereon from the date of such original assessment, which assessment shall be made, as nearly as may be, in the same manner as is herein prescribed for the first assessment,”

The sole contention of counsel for the city is that the present new assessment was made under section 57, because the county court, by refusing to render said judgment and order of sale, did, in effect, set aside the first assessment. We do not think this contention can be sustained or that it is in harmony with the decisions of this court. In the first place, several terms of the county court had elapsed between the confirmation of the original assessment and order denying the sale, and therefore the court would have been without jurisdiction to set aside the judgment of confirmation if the proceedings had .been for that purpose. In the case of McChesney v. City of Chicago, 161 Ill. 110, it was said: “A judgment cannot be vacated by the court which rendered it, after the term at which it was rendered, except in obedience to the mandate of an Appellate Court on reversal. The repeal of an ordinance for a special assessment pending an appeal from a judgment confirming the assessment does not justify the court in vacating the judgment after several terms of court have passed, notwithstanding the provisions of the City and Village act that if an assessment shall be annulled or set aside a new assessment may be made. Judgment of confirmation affirmed on appeal bars a second judgment under a new ordinance for the same improvement, notwithstanding the repeal of the former ordinance and the attempted setting aside of the former judgment at a subsequent term, pending the appeal.” In the case of People v. McWethy, 165 Ill. 222, it was again said (p. 224) : “The judgment of confirmation of the assessment under the first ordinance was a final judgment, and remained in full force and effect notwithstanding the ordinance of July, 1892, and the court which rendered it could not set it aside or deny its binding force at a subsequent term, but the court, as well as the city and all parties to it, was bound by it.” To the same effect is City of Chicago v. Nicholes, 192 Ill. 489. But even if this were not so, the application for an order of sale was collateral to the judgment of confirmation and , in no sense a proceeding to set aside that judgment.

This case is distinguishable from those like Murray v. City of Chicago, 175 Ill. 340, in which the ordinance was void upon its face for want of power in the city council to pass it. We think it clear, in this case, that the order of the county court refusing judgment and order of sale did mot have the effect of setting aside the original assessment within the meaning of section 57, supra. That assessment is, so far as shown by this record, in full force and effect, and the city council was without power to pass the new ordinance levying a second assessment under that section. The only authority given it to do so must be found in section 60, under which it could only have done so within five years from the confirmation of the original assessment. Having failed to act within the time required by the statute it was barred and its action without force or effect.

Several other questions are raised on the record by appellants, but as the foregoing conclusion disposes of the case it will be unnecessary to consider them.

The county court erred in overruling appellants’ second objection and confirming the assessment, and its judgment will therefore be reversed and the cause remanded to the county court with directions to dismiss the petition.

Reversed and remanded, with directions.