City of Chicago v. Collin

Mr. Justice Cartwright

delivered the opinion of the court:

On October 19, 1918, the city of Chicago filed in the circuit court of Cook county its petition praying the court to cause to be ascertained the compensation to be paid for a large number of lots in the city of Chicago described in' the petition, to be appropriated to school purposes. While the suit was pending an act was passed which took effect July 1, 1919, amending section 224 of the Revenue act so as to provide that any judgment or decree of court, in law or equity, setting aside any tax deed procured under the act or restoring the owner of the same to possession, should provide that the claimant should pay to the party holding such deed all taxes and legal costs, with interest, together with subsequent taxes and special assessments paid and the statutory fee and costs incurred and other specified items, and that no final judgment or decree of court in any case, either at law or in equity, or in proceedings under the Eminent Domain act involving the title to or interest in any land in which such party holding such tax deed should have an interest, or setting aside any tax deed procured under the act, should be entered until the claimant should make reimbursement to the party .holding such tax deed and payments as therein provided, in so far as it should appear that the holder of such deed or his assignors should have properly paid or be entitled to in procuring such deed. (Laws of 1919, p. 762.) Upon a trial a verdict was returned on February 17, 1920, finding the just compensation for certain lots to be $4800 and for certain other lots $1800. On March 15, 1920, judgment was entered on the verdict, and the petitioner was ordered to pay to the county treasurer the compensation allowed for the several parcels, as pro-, vided by statute, for the parties entitled thereto. On April 8, 1920, J. Kent Greene and Anna M. Cann filed their petitions for portions of the fund, Greene alleging that he was the owner of the lots for which compensation of $1800 had been allowed and Anna M. Cann alleging that she was the owner of the lots for which compensation of $4800 had been allowed, by deed from Oscar E. Leinen, one of the defendants in the condemnation suit. The city of Chicago answered the petitions, claiming portions of the fund by virtue of tax deeds under sales for installments of special assessments. It was stipulated that the property described in the two petitions had been sold at various times to the city of Chicago for delinquent special assessments, and that out of the funds deposited with the county treasurer there should be paid to the city $759.48, and Greene and Anna M. Cann (who had been married and whose name is now Anna M. Condon) agreed upon the portions chargeable to each. The petitions were also answered by Jacob Glos and Lucy M. Glos, claiming ownership of the fund by virtue of tax deeds. The petitions and answers were referred to a master in chancery, who took the evidence and reported that Greene and Anna M. Condon were the owners, respectively, of the lots claimed; that the tax deeds of Jacob Glos and Lucy M. Glos were void; that there was due to Greene $1631.22 after allowing $171.78 to the city of Chicago; that there was due to Anna M. Condon $4215.30 after allowing $587.70 to the city of Chicago; that Jacob Glos was entitled to $1008.18 for reimbursement on his tax claims and Lucy M. Glos was entitled to $579.48 on account of her tax claims. On a hearing on exceptions to the report the findings were approved, but one-half of the master’s fees of $357.50 was taxed to Jacob Glos and Lucy M. Glos, to be paid out of the fund, leaving the net amount payable to Jacob Glos $894.68 and to Lucy M. Glos $514.23. It was stipulated that the charges for the tax claims were to be made against Anna M. Condon, and she appealed from the order. Jacob Glos and Lucy M. Glos assigned cross-errors, each one specifying twenty-six particulars in which it was alleged that the court erred. They also appealed, and the appeals have been consolidated and all errors and cross-errors will be disposed of without particular reference to them.

The validity of the act is questioned on the same ground as the act of 1861, which required a deposit of the redemption money and interest as a condition precedent to questioning the validity of a tax deed, which was held unconstitutional. (Wilson v. McKenna, 52 Ill. 43; Reed v. Tyler, 56 id. 288.) That act prohibited a resort to the courts to determine rights unless payment should be made before the right had been determined, which was said to be equivalent to compelling a party to buy justice and perhaps to prevent a poor person from obtaining an adjudication of his rights. The objection does not apply to the amendment, which does not limit the right to resort to the courts, and it is only upon a determination of the existence of the claim that reimbursement must be made. It only applies to cases where tax deeds are void, because if they convey title there would be no question of reimbursement.

The act amending section 224 was passed after the petition for condemnation had been filed and before the judgment, and it is clear from the provision that no final judgment or decree should be entered until reimbursement should be made to the party holding a tax deed, that it applied to pending causes and the reimbursement provided for could be made by a provision in the judgment or decree. It was in the nature of an act affecting the remedy, and might be applied to existing causes of action or pending suits provided it did not disturb or impair vested rights. While the general rule is that statutes are not to be given retrospective operation except where it is manifest that the legislature intended they should have such operation, it is not competent for the legislature to give such operation to an act where it will affect existing or vested rights. (Conway v. Cable, 37 Ill. 82; Dobbins v. First Nat. Bank of Peoria, 112 id. 553.) A vested right is an immediate fixed right of present or future enjoyment, (Young v. Jones, 180 Ill. 216,) and in this case the nature of the proceeding and the provisions of the act concerning eminent domain must be considered. In ordinary litigation the rights of parties are determined when the judgment is entered, but there are material differences in case of taking private property for public use by condemnation proceedings. It is a condition to the exercise of the right that the authorities seeking to appropriate the property shall first attempt to agree with the owner on the compensation, and it is only upon a failure to agree that a petition may be filed. If there had been such agreement in this case the owner of the property would be entitled to the full compensation. The lien of the State for taxes is paramount and superior to any other lien or any property right, and the lien against real property continues even where the property has been forfeited for want of bidders; (Biggins v. People, 106 Ill. 270;) but the lien is discharged by a sale, and the purchaser who obtains a void deed has no property right in the land, either legal or equitable. (Miller v. Cook, 135 Ill. 190; O'Connell v. Sanford, 256 id. 62; City of Chicago v. Gage, 268 id. 232.) The city of Chicago and the owners of the property not being able to agree upon the amount of compensation to be paid, the city filed its petition to have the amount determined. In law the land was regarded as taken for the public use at that time, and the compensation was measured by the value of the land on the day the petition was filed. (South Park Comrs. v. Dunlevy, 91 Ill. 49; Dupuis v. Chicago and North Wisconsin Railway Co. 115 id. 97; Chicago, Evanston and Lake Superior Railroad Co. v. Catholic Bishop, 119 id. 525; Calumet River Railway Co. v. Moore, 124 id. 329; Lieberman v. Chicago and South Side Rapid Transit Railroad Co. 141 id. 140; Chicago and State Line Raihvay Co. v. Mines, 221 id. 448.) A petitioner may dismiss the petition, and in case of such dismissal or failure to make payment must pay costs, expenses and attorney’s fees, but if payment is made, as it was here, the money represents the value of the land when the petition was filed and liens or claims are transferred to the fund. (Colehour v. State Savings Institution, 90 Ill. 152.) The essential feature of the proceeding is to fix the amount of compensation as to which the parties have failed to agree. By virtue of the provision of the Eminent Domain act and the law applied thereto, the owner of land sought to be taken for public use acquires on the day the petition is filed an immediate, fixed and determinate right to any compensation that may be allowed and paid in the future and which takes the place of the land condemned. The right of the owners of the lots taken in this case was therefore a vested right, which could not be impaired by subsequent legislation providing that a portion of the compensation should be paid to others.

Anna M. Condon moved the court to tax all the master’s fees against Jacob Glos and Lucy M. Glos and offered the affidavit of J. Kent Greene stating reasons in support of the motion, but the court excluded the affidavit and denied the motion. There was no reason for referring the petition to a master, but the record shows that the reference was made upon the motion of Greene as solicitor for Anna M. Condon and himself, and we cannot say from the record that anything which occurred before the master would require the taxing of all of his charges to Jacob Glos and Lucy M. Glos. As no allowance is to be made to Jacob Glos and Lucy M. Glos, the cost taxed to them will not be taken out of the fund but will be taxed against them personally.

The decree is reversed and the cause remanded.

Reversed and remanded.