Bond v. City of Hoopeston, 168 Ill. App. 617 (1912)

March 15, 1912 · Illinois Appellate Court

168 Ill. App. 617

Nathan Bond, Appellee, v. City of Hoopeston, Appellant.

1. Mandamus — when petition to compel payment of commissioners’ fees sufficient. A petition to compel a city to pay the fees of a commissioner appointed to estimate the benefits of an assessment, need not set up the ordinance providing for the making of such improvement or its provisions relative to the payment of the costs and expenses of the proceedings. It is sufficient to state generally the character, purpose and effect of the ordinance and the proceedings taken thereunder.

2. Mandamus — when judgment compelling payment of commissioners’ fees sufficient. A judgment in mandamus compelling a city to pay the fees of a commissioner appointed to estimate the benefits of an assessment, need not disclose out of what fund the same should he paid.

Mandamus. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.

Heard in this court at the October term, 1911.

Affirmed.

Opinion filed March 15, 1912.

Jay Briggs, for appellant; C. M. Briggs, of counsel.

Robert R. Rodman and Arthur R. Hall, for appellee.

Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a petition for a writ of mandamus against the city of Hoopeston, Illinois, requiring said city to immediately pay the petitioner, Nathan Bond, the sum of $400 due the petitioner by reason of his appointment by the County Court of Vermilion county, Illinois, as one of the commissioners to estimate the benefits of a certain local improvement in said city of Hoopeston. A general and special demurrer to the petition was sustained by the court, and the defendant elected to stand by its demurrer, refusing to further plead. Judgment was accordingly entered against the defendant in favor of the petitioner, awarding a writ of mandamus as prayed in the petition. The defendant seeks to have such judgment reviewed by this court.

The petition alleges that the city of Hoopeston passed an ordinance creating a local improvement, and that afterward, a petition was filed in the County Court of Vermilion county that steps be taken to ascertain the just compensation to be made for property taken or damaged, and to- ascertain the amount of benefits to the properties described in the petition; that afterward an order was entered designating and appointing the petitioner herein, and one Merritt, as commissioners to act with the president of the board of local improvements of said city, to ascertain such benefits in such proceedings; that the petitioner and the other commissioners afterwards made a report, and an assessment roll, and returned the same into the County Court, and thereafter a jury was impaneled and returned its verdict in favor of the petitioners; that afterwards the assessments were confirmed by order of the County Court; that at a hearing had upon evidence, the court fixed the compensation of each of said commissioners at the sum of $400 and entered an order accordingly that the petitioner receive such sum for his fees as such commissioner. The petition further alleges that the sum of money ordered by the County Court to he paid to the petitioner as commissioner’s fees was still due and unpaid and that there was in the hands of the treasurer of said city, not otherwise appropriated, ample funds for the payment of said judgment in full, and that said city of Hoopeston has the legal right to pay said judgment out of the funds in the hands of said treasurer, and prays that the court award a writ of mandamus commanding the city officers named in the petition forthwith to pay to the petitioner the amount of said judgment, together with interest thereon.

The causes of demurrer to the petition, briefly stated, are that no part of the ordinance providing for the making of the improvement in question is set forth in the petition; that it does not allege that said ordinance provided for the payment of the costs and expenses of such improvement out of any fund, or what the provisions of said ordinance were in reference thereto; that the order of the County Court fixing the fees of the petitioner fails to show whether the same is a general judgment or one payable out of a particular fund; that the averment that there were funds on hand in the treasury of the city not otherwise appropriated, and that the city had a legal right and authority to pay such judgment out of such funds, are hut conclusions of the pleader; that the petition fails to allege from what fund the money due to the petitioner is payable, whether from the public improvement fund or a special fund or from any fund under the control of the city.

It was unnecessary that the ordinance providing for the making of such improvement, or its provisions relative to the payment of the costs and expenses of the proceedings, should have been set out in the petition. It was sufficient to state generally the character, purpose and effect of the ordinance and the proceedings taken thereunder. The judgment of the County Court was final and conclusive of the right of the petitioner to receive and the duty of the city to pay the amount of the judgment. Neither was it essential that said judgment should disclose out of what fund the same should he paid.

Section 94 of the Local Improvement Act (Hurd’s Eev. Stat. (1909) 479) in express terms provides that the entire costs and expenses connected with the proceedings therein authorized, including the court costs, shall be paid by the city, in the present instance, out of its general fund. The proviso to said section does not affect the present case. Ricker v. City, 204 Ill. 191.

That there were funds on hand in the treasury of the city, not otherwise appropriated, is, we think, alleged with sufficient directness. The material allegations of the petition, the truth of which was admitted by the demurrer, clearly entitled the petitioner to the relief prayed, and the Circuit Court did not err in overruling the demurrer thereto nor in ordering the issuance of the writ.

The judgment is accordingly affirmed.

Affirmed.