Imágenes de páginas

and is therefore not broad enough to cover ally following, the provision of section 41 last the present contention of appellants. If treat- | above quoted, and James M. Grimm made an ed as sufficient, the objection is not ten affidavit that, at the request of the superinable, as we read the statute. Section 38 re tendent of special assessments, he had made quires the superintendent to make the assess a careful examination of the books of the ment, and section 39 points out how the as collector showing the payment of general tax. sessment shall be made. Section 41 relates es during the last preceding year in which the to the making up and return of the assess taxes were paid thereon to ascertain the per ment roll and the giving of certain notices son who last paid the general taxes for the last to the property holders. There is no pro preceding year in which the taxes were paid vision in the statute requiring any affidavit thereon, and also made a diligent search for that sections 38 and 39 have been complied the residence of such persons, and that said rewith. Section 41 contains this provisiou: port correctly states the names of such person "An affidavit shall be filed before the final or persons and their residence, as so ascertainhearing showing a compliance with the re ed by affiant. And, in addition to these affiquirements of this section, and also showing davits, John A. May, the superintendent of that the affiant (either the officer making the special assessments, and other affiants, made said return, or some one acting under his affidavits as to the mailing, posting, and pubdirection) made a careful examination of the lishing of notices. From a careful examinacollector's books showing the payments of tion of the record we are satisfied that the general taxes during the last preceding year proceeding was not subject to the objection in which the taxes were paid thereon, to ascer so urged. tain the person or persons who last paid the Appellants offered to prove that in the first taxes on said respective parcels, and a dili and original resolution for the improvement, gent search for their residences, and that the passed prior to the passage of the first ordireport correctly states the same as ascertain nance, there was no itemized estimate of the ed by the affiant; and said report and affida cost of the improvement incorporated therein. vit shall be conclusive evidence, for the pur Objection was interposed, and the offered evi. pose of said proceeding, of the correctness of dence was excluded. To justify the introthe assessment roll in said particulars." duction of this evidence, the appellants reLaws 1901, p. 107 (Hurd's Rev. St. 1903, C. lied upon City of Chicago v. Noonan, 210 Ill. 24, $ 547).

18, 71 N. E. 32, wherein it is said (page 21 Appellants insist that this court should so of 210 Ill., and page 33 of 71 N. E.): “The construe the above language as to require the additional assessment sought to be levied in affidavit to cover the duties provided for in this case is not a new assessment, but a supsections 38 and 39, and that unless the act be plemental one, as authorized by said section so construed the same is incongruous and in 59, and can in no sense be deemed a de novo complete, as it does not cover all the duties to proceeding." The point that was under conbe performed by the officer spreading the as sideration in that case and being discussed sessment The proceeding is a statutory one, was whether the property owners were enand the point is one of practice, and, where titled to a public hearing before the board of the statute points out a particular practice local improvements upon the resolution for and declares the effect of following it, we the additional or supplemental assessment can see no reason for enlarging upon the and the report of the engineer concerning the statute. The first part of section 41, supra, same, and the effect of the holding was that, after specifying what the assessment roll inasmuch as the work was all completed beshall contain, proceeds: “And the officer fore the supplemental assessment was levied, making such roll shall certify under oath such assessment could properly originate by that he verily believes that the amounts as petition to the court without a public hearing sessed against the public and each parcel of or other preliminary steps required in the property are just and equitable, and do not original assessment. And although we there exceed the benefit which will in each case be said, in effect, that the proceeding for the derived from said improvement, and that no supplemental assessment was a continuation lot, block, tract, or parcel of land has been of the original proceeding, and not a de assessed more than its proportionate share nuvo proceeding, the question here presented, of the cost of said improvement." As to the whether defects or irregularities that might making of the assessment, it would seem that have availed the property owner in the origithe Legislature had clearly pointed out all nal proceeding can be taken advantage of in that was requisite for the affidavit to con a proceeding under the new ordinance for a tain, and that the provision later contained supplemental assessment, was not raised or in the same section and hereinabove first set considered. We held in that case and others out was not intended to apply to the making that the supplemental assessment ought not, up of the assessment roll, but to the matters and could not, properly be made until the of notice and of ascertaining the names and

completion of the work, when the deficit was residences of the persons who paid the gener definitely known, and, as the supplemental asal taxes for the preceding year. The superin sessment can only be made upon the new and tendent of special assessments did make an additional ordinance specially providing for affidavit in strict compliance with, and liter- it, it would seem reasonably to follow that

76 N.E.—25

upon mere matters of objection to the suffi- | law, until paid." It is urged by appellants ciency of the ordinance the property owners that the provision in regard to interest should be confined to the ordinance then being renders the ordinance void. Appellee sugproceeded under, and not be permitted to at gests that the ordinance is valid for the tack the prior ordinance, which had been not reason that it appears by the original oronly adjudicated upon but fully acted under. dinance that the assessment levied under To hold otherwise would be to jeopardize the it was made payable in installments, and interests of the public and make uncertain

that being so the law authorized the issuthe rights of contractors, who, on the faith of

ance of interest-bearing bonds to be liquithe confirmation of the original assessment, had dated by the installments, and that it was proceeded with the work. So far as the suff

proper in this case to require that the assessciency of the original ordinance is concerned,

ment bear interest to meet the interest on we think the property holders should be

the outstanding bonds. The only provision concluded by the proceedings under it, and

of the act in regard to local improvements apshould not be permitted to attack it in a

plicable to the question before us is found in proceeding under the ordinance for the sup

section 42 of the act. We had that section plemental assessment.

before us and considered it in connection with Appellants having objected that the origi

an assessment payable in one installment in nal judgment was res judicata upon the ques

the case of McChesney v. City of Chicago, 213 tion of benefits, the petitioner introduced two

Ill. 592, 73 N. E. 368, and we there said (page witnesses who testified that the property of

593, of 213 Ill., and page 369, of 73 N. E.): the objectors would be benefited the full

“That section applies only to assessments amount of the assessment, and two witnesses

which are divided into installments, and an testified for the objectors that their property

assessment payable in a single payment canwould not be benefited by the proposed im

not be regarded as an installment of an asprovement more than the original assessment; and it is urged

sessment or within the language of the staton authority of

ute. There is no other provision that an asBroughton v. Smart, 59 Ill. 440, that, as two

sessment shall draw interest, and in the abwitnesses testified one way and two the other,

sence of statutory authority the city council there was no preponderance of the evidence

had no right to require the payment of inin favor of the petitioner, and that, as it was held in City of Chicago V. Noonan, supra,

terest, which is never allowed unless given by that the former judgment was prima facie

statute." What was said in that case we evidence that the property was assessed as

deem applicable to the case at bar and de much as it would be benefited, the court erred

cisive of the question of the power of the city in holding a preponderance in favor of the

council to provide that the assessment should petitioner and rendering judgment of con

bear interest. Counsel for appellee urge firmation. We do not agree to the contention

that in the McChesney Case the assessment that because two witnesses testified one way

or installment was a flat installment, in upon the main fact and two witnesses an

which the vouchers would bear no interest, other there was not, or could not be, a pre

and therefore the holding there is not apponderance of the evidence. The evidence is

plicable to the case at bar. The question is weigbed and not counted, and, where the

one of power, and the power must be found court has before it witnesses testifying in a

in the statute, if at all, and what we have cause, there are many things that enter into

said in the McChesney Case goes directly to consideration in determining the weight of

the vital phase of it. the testimony and reaching the conclusion up

It remains to determine whether the act on the question of a preponderance. A jury must be held void because of the provision for was waived and the cause heard by the court, interest on the assessment, or whether that and we are unable to say from the record provision may be disregarded and the rebefore us that the court erred in its finding mainder of the ordinance sustained. We in that behalf.

have examined the ordinance for the assessThe ordinance for the supplemental assess ment in question, and it nowhere contains any ment recites the passage of the original or. statement that there were outstanding indinance for the paving and grading of Seven terest-drawing bonds to be paid or that it ty-Fourth street, from Yates &venue to Bond would be necessary to levy an assessment that avenue, and the original estimate of the cost should draw interest. We think the levy for of $12,500, and the confirmation and collec the deficit was explicit, and are not embartion of the original assessment of $12,160.70, rassed at all in determining what portion of and the letting of the contract and the com the ordinance, if any, may be determined to pletion of the work at a cost of $15,600, and be invalid or what portion might be held to finds a deficiency of $3,439.30, and ordains be valid, as the two matters, under the provithat a supplemental assessment be made to sions of the ordinance, are entirely severable. pay such deficiency. Section 4 of the or The usual test in determining whether a dinance provides "that the supplemental | part of a statute or ordinance may be rejected special assessment herein provided for shall and a part sustained, where they are severbe payable and shall be collected in one in able, is to ascertain whether the legislative stallment, and shall bear interest at the rate branch enacting the statute or ordinance of five per cent. per annum, according to the would have enacted the main provision with

out the subsidiary or void portion. So far | to regulate the practice of medicine in the as appears from the ordinance itself, there is state of Illinois, and to repeal an act therein no reason to believe that the city council named," in force July 1, 1899. Laws 1899, would not have as readily passed the ordi p. 276. The circuit court sustained the denance without the provision for interest as murrer of defendant to the declaration, and, with it. If the claim for interest was valid the plaintiff having elected to stand by the at all, the city council could have provided in declaration, there was judgment in favor of the ordinance for the levy of a sum sufficient the defendant. On appeal to the Appellate to cover the principal of the bonds and the Court for the Second District the judgment interest without providing that the assess was affirmed, and from the judgment of the ment should bear interest. We are of opin Appellate Court this further appeal was prosion that the ordinance for the main deficit ecuted. can be sustained, and that portion of it pro The act regulating the practice of medicine viding for the payment of interest on the provides for the organization of the State assessment can be and ought to be rejected. | Board of Health, and the granting by said

The objection that the ordinance for this board of licenses to practice medicine in this assessment should bave provided that it state. There were two previous acts regulatshould be paid in installments, as was the ing the practice of medicine, the first in force original assessment, has recently been before July 1, 1877, and the second July 1, 1887, each us in Goodrich v. City of Chicago, 75 N. E. of which provided for the granting of licenses 805, and Noyes v. City of Chicago, 75 N. E. or certificates from the State Board of Health, 807, where in the former case it was fully and probibited the practice of medicine withconsidered and the contention of appellants out such license or certificate, with an excepdenied.

tion in the first act in favor of those who had The judgment must be reversed, for the been practicing 10 years before the passage of reason that the ordinance provides for inter the act. Both of the previous acts made it a est on the assessment, and it will be remand penal offense to practice medicine without a ed, with directions to the county court to license or certificate. Section 9 of the presaffirm the assessment, with an order that the ent act, under which this suit was instituted, same shall not bear interest as provided in contains the following provisions: “Any perthe ordinance.

son practicing medicine or surgery or treating Reversed and remanded, with directions. human ailments in the state without a certif

icate issued by this board in compliance witb

the provisions of this act. . shall, for (219 III. 189.)

each and every instance of such practice or PEOPLE V. LANGDON.

violation, forfelt and pay to the people of the (Supreme Court of Illinois. Dec. 20, 1905.) state of Illinois, for the use of the said board PHYSICIANS AND SUBGEONS - PRACTICING of health," certain penalties therein mentionWITHOUT LICENSE.

ed; and the section concludes with this proLaw8 1899, p. 276, § 9, provides that any

viso: "Provided, that this section shall not person practicing medicine in the state without à certificate from the state board of health

apply to physicians wbo hold unrevoked cershall forfeit a certain sum, but that the section tificates from the State Board of Health isshall not apply to physicians holding unre sued prior to the time of the taking effect of voked certificates from such board issued before

this act." the taking effect of the act. Held, that a person practicing medicine before the law took

There were six counts of the declaration, in effect, and continuing to practice without ob each of which it was charged that at the re taining a certificate under the act or without spective dates therein named, in the year holding an unrevoked certificate issued before the taking effect of the act, is within its terms.

1903, the defendant unlawfully practiced

medicine and surgery, and treated human Appeal from Appellate Court, Second Dis ailments without a license or certificate from trict.

the State Board of Health, and three of the Action by the people, for the use of the counts contained the additional averment that State Board of Health, against Peter R.

he was, on July 1, 1899, illegally engaged in Langdon. Judgment for defendant was af

the practice of medicine. None of the counts firmed by the Appellate Court, and plaintiff

averred that he began the practice of mediappeals. Reversed.

cine after July 1, 1899, and it is contended · Rehearing denied February 7, 1906.

that without that averment the declaration W. H. Stead, Atty. Gen., and J. Bert Miller, stated no cause of action. The question State's Atty., for the People. Truman W. raised is whether a person who has no license Shields, for appellee.

to practice medicine, who began such practice

before July 1, 1899, when the present act took CARTWRIGHT, C. J. This is an action of effect, and continued such practice thereafter debt, brought by the people of the state of without a license, is subject to the penalties Illinois, for the use of the State Board of named in section 9. It is clear that such a Health, against Peter R. Langdon, to recover person comes within the express language of the penalty for practicing medicine without a that section. He is a person who is practilicense from the State Board of Health, im- cing medicine without a certificate issued by posed by section 9 of an act entitled "An act | the State Board of Health in compliance with

the provisions of the act, and who does not I persons entering upon the practice of medi. hold an unrevoked certificate from the State cine after the act took effect. But that is Board of Health issued prior to the taking an entirely different proposition from the one effect of the act. Having no license at all to involved in this case. It does not follow practice medicine, he is within the terms of from that decision that one who has no lithe statute and subject to its penalties.

cense under the present act or any former act But counsel say that because section 2 | may practice medicine without being subject (page 274) only provides for the granting of to the penalties prescribed by section 9. The licenses to persons entering upon the practice court erred in sustaining the demurrer. of medicine after July 1, 1899, when the act The judgments of the Appellate Court and took effect, the only persons subject to the circuit court are reversed, and the cause is penalties imposed by section 9 are those who remanded to the circuit court, with directions began the practice after that date. We do to overrule the demurrer. not see how that position can be maintained. Reversed and remanded. The provision of section 2 relied upon is as follows: "No person shall hereafter begin the practice of medicine or any of the

(219 Ill. 200) branches thereof, or midwifery in this state

PEOPLE ex rel. HANBERG, County Treaswithout first applying for and obtaining a

urer, v. COHEN et al. license from the State Board of Health to (Supreme Court of Illinois. Dec. 20, 1905.) do so." Taking that section and the other 1. JUDGMENTRES JUDICATA-JUDGMENTS OF provisions of the act together, they amount

REVERSAL. to this: Any person desiring to enter upon

A judgment of the Supreme Court, revers

ing generally a judgment of sale for the first the practice of medicine after the act took

| installment of a special assessment, is not res effect could only do so after first applying for judicata on an application for a judgment of and obtaining a license from the State Board sale for the second installment, as to which the of Health in compliance with the provisions

record is different from the one on which the

judgment was reversed. of the act, and any person practicing medi

2. CONSTITUTIONAL LAW - DUE PROCESS OP cine without a certificate issued under said

LAW. act, or an unrevoked certificate issued under Section 84 of the local improvement act previous acts, was subject to certain penalties (Hurd's Rev. St. 1903, c. 24, § 590), providing specified in section 9. The act is penal in

that property owners shall be notified of the

filing of the certificate of the board of local character, and is to be strictly construed,

improvements showing the cost of the improve but not with such technicality as to defeat ment, etc., and of the time and place of hearing its purpose. When the true meaning and in the same by publication and posting of notices, tent of the act are apparent, the act is to be

and authorizing the filing of objections to the

approval of the certificate within a specified given effect in accordance therewith. Mea

time and a trial in which the court shall judidowcroft v. People, 163 Ill. 56, 45 N. E. 303, cially hear and determine the issues and con35 L. R. A. 176, 54 Am. St. Rep. 447; Hamer clusively determine the case, affords due process V. People, 205 Ill. 570, 68 N. E. 1061. The

of law to persons interested therein, although

it gives no right of appeal. proviso excluding persons practicing medicine

3. MUNICIPAL CORPORATIONS - PUBLIC IN. who hold unrevoked licenses issued by the PROVEMENTS - LOCAL ASSESSMENTS - OON. State Board of Health prior to the taking FIRMATION-CONCLUSIVENESS. effect of the present act cannot be ignored in

Under section 84 of the local improvement

act (Hurd's Rev. St. 1903, c. 24, & 590), prointerpreting the act, and the proviso would

viding for the trial of objections to the apbe useless and senseless, if the Legislature

proval of the certificate of the board of local intended the act to apply only to persons who improvements showing the cost of the improvebegan the practice of medicine after the act

ment, etc., and providing that the order of the took effect. To say that the Legislature in

court shall be conclusive on all parties, an order

of the county court approving a certificate, tended to grant immunity from prosecution to which recites the completion of the improvement persons who were unlawfully practicing medi. in substantial compliance with the terms of cine at the time the act took effect would be

the ordinance, is conclusive on that question

in a subsequent proceeding to collect the aswholly unwarranted. . On the contrary, an

sessment. unrevoked license or certificate issued under some previous act was required by the pro

Appeal from Cook County Court; Orrin viso. In the case of State Board of Health

N. Carter, Judge. v. Ross, 191 III. 87, 60 N. E. 811, the question

Application by the people, on the relation whether the State Board of Health could re

of John J. Hanberg, county treasurer, for voke certificates issued under a previous

a judgment and order of sale of a delinquent act was considered, and it was held that it

installment of a special assessment; H. could not. That decision was in accordance

| Cohen and others, objectors. From a judg. with the language of the act which provided

ment sustaining the objections, relator apfor issuing licenses, and in one sentence pro

peals. Reversed. vided that the board might refuse to issue a

Rehearing denied February 7, 1906. license for certain reasons, and might revoke Robert Redfield and Frank Johnston, Jr. such license for like causes. The provisions (James Hamilton Lewis, Corp. Counsel, of for granting, refusing to grant, or revoking counsel), for appellant. George W. Wilbur, a license under the present act relate only to 1 for appellees,

BOGGS. J. This was an application of, Mountain & Southern Railway Co., 217 Ill. the county treasurer and ex officio county 504, 75 N. E. 562. The record now before us collector of Cook county for a judgment and is not the same as was the record in the order of sale for a delinquent second in- | Eustace Case, supra. In the Eustace Case stallment of a special assessment for curb the record did not contain a certificate of the ing, grading, and paving with granite blocks board of local improvements certifying that South Canal street from West Harrison the improvement had been completed in substreet to the north line of the right of way stantial compliance with the requirements of of the Chicago, Burlington & Quincy Rail the ordinance or the order of the county road on Lumber street, warrant No. 31,183. | court approving and confirming the same The appellees objected to the application on after a hearing in that court, as does the the grounds, among others: (1) That the record in the case at bar. See opinion on recounty court had no jurisdiction herein, for hearing in Eustace Case. the reason that the subject-matter of the Under the view we take of this case it said application has been fully and finally will not be necessary to consider the second determined by this court against the petition- ground of objection urged by appellees—that er; and (2) that the improvement as con- | it appeared from the testimony introduced structed is other and different from the one herein that the improvement was not condescribed in the ordinance which is the basis structed in substantial compliance with the of this application. Upon the hearing the provisions of the ordinance. court admitted in evidence, over the objection This brings us to the consideraton of the of the appellees, the certificate of the board contention of the appellant that the cerof local improvements, showing a statement tificate of the board of local improvements of the cost of the improvement and that the showing the cost of the improvement and a improvement had been completed in sub recitation that the ordinance had been substantial compliance with the ordinance, and stantially complied with in making the imalso an order entered in the county court, provement, and the order of the court apafter giving the notice required by the stat proving and confirming the same, entered afute, approving and confirming such certifi ter notice and a hearing, are res judicata of cate. The court permitted the appellees, the question of fact approved and confirmed over the objection of the appellant, to intro- | by said order. The appellees intimate in duce evidence tending to show a variation be their brief that section 84 of the local imtween the improvement as completed and the provement act (Hurd's Rev. St. 1903, c. 24, provisions of the ordinance. Over the ob- $ 590). authorizing the action of the board jection of the appellees the appellant intro of local improvements and that of the county duced evidence for the purpose of showing a court in approving and confirming the same, substantial compliance with the ordinance. is unconstitutional, in that, as they contend, After the hearing the court entered an order it deprives the property owners of their propsustaining the objections interposed by the erty without due process of law. This secappellees, and this is an appeal from such tion 84 provides that the property owners order and judgment.

shall be notified of the filing of the certificate, The appellees urge in support of their first and of the time and place of hearing the objection that the question whether the im same, by publication and posting of notices; provement as completed was in substantial that objections may be filed to the approval compliance with the provisions of the ordi. of the certificate of the board of local imnance was res judicata, having been final- provements by such improvements by such ly determined by the decision of this court property owners within a time specified in in Eustace v. People, 213 Ill. 424, 72 N. E. the act; that a trial shall be had before 1089, which involved the collection of the the court, and that the court shall judicially first installment of the assessment for the hear and determine the issues in a summary same improvement. In that case we held manner; and that the order of the court that, upon the record then before us, in shall be conclusive on all parties. An ormaking the improvement there had not been derly proceeding, where a person is served a substantial compliance with the terms with notice, actual or constructive, and has of the ordinance, but the judgment in the an opportunity to be heard and to enforce case was reversed and the cause remanded and protect his rights before a court having generally. We do not agree with the con power to hear and judicially determine such tention of appellees that the decision in said case, is due process of law. 8 Cyc. 1082. case is res judicata. An order of this court The denial of the right of appeal or of the reversing a judgment and remanding the right to sue out a writ of error in a statutory cause generally has the effect only of a proceeding cannot affect the validity of the final judgment upon the facts then in the statute. The right to prosecute an appeal record, but the parties are not estopped there. from the judgment of a trial court is purely by from introducing further evidence tend- statutory (Lingle v. City of Chicago, 210 Ill. ing to prove or disprove the issues as joined 600, 71 N. E. 590), and in statutory proceedafter the reinstatement of the cause. In ings, such as the case at bar, a writ of error re Estate of Maher, 204 Ill. 25, 68 N. E. 159; is not a writ of right, where the Legislature Illinois State Trust Co. v. St. Louis, Iron ' has seen fit to provide otherwise. Hart

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