, 1861-12-17
OLD CLAlH1B AGAINST TEsE CITY.
The City Compelled to pa7 Them.
In Cook County Circuit Court Of November

IEIu, 1GQl.
In the matter Of the application Of tho peo-
for IN alternative mandamuB to be directed to
the Mayor and Comptroller Of the city Of
Chicago, commanding them, etc, Judge
Mqnielre delivered the following opinion
y m act @ @amendatory Of the charter, in force
created, and by the Sth section, it was pro-
yided, that the eaid department should hare
control of all the fiscal concerns of the corpo-
ration, and among other powers granted to IT
was that Of settling and adjusting I'LL cluims
whatsoever, in which the corporation is con
cerned, either as debtor or creditor And by
clauses Of the 9Th and 18th sections, it was
further provided, that the City Comptroller
should be the chief Of said department, and as
such it Should be his duty to examine, adjust
and audit all such accounts, claims and de-
mandE, and that for the purpose Of enabling
hin to ascertain the true state Of any balance,
be Was clothed with l'1l1 powerto administer
an oath to the claimant, or any other person
whom i1e might think proper to examine con-
cerning the correctness Of fsuch account, claim
or demand.
In the exercise Of these powers the Compt-
roller previously to the 18th Of February,
1851, had adjusted large number Of Claims
and a!.a demands, many Of which, on that day, re-
dehtedness was represented by city scrip and
other written evidences of debt which had
been issued by the Comptroller to creditors
whose claims had been adjusted There also
existed at the same time q large number Of
outstanding Claims which had not been i'd
justed or recognized as valid by the connt-
roller Many Of these had been rejected by
that officer rs 11nfoundcd, and the parties
holding them left to seek their adjustment in
the courts. In this positiou Of affairs said
anlendatory act Of February IL, 1851, mas
passed.
{Hcrc the Court cited the sections Of the
act relative to the issue Of bonds by the My
or and Comptroller, and the duties Of the
C]aims COMMISSIONER.
It is alleged IN the relator's petition that at
the time Of the passage Of tlis ameidatory act,
| the city Of Chicago was largely indebted to
them for macada1nlz1ng part Of West Madl-
son street, viz: in the sum Of s2t, 900. That
this said claim WIS laid before said commits
sioners, and that after due examination there
of they found balance due the petitioners Of
| $11, ,096.63, and so reported to the Common
| Council on the 18th day Of September, 1861.
| That by the said amendator5 act it is made the
| duly OF the Mayor and Comptroller to issue
| and uegotiate city bonds for the payment of
| the amount so reported, which duty, it is al
| legged, those officers lave failed to perform.
And here the question arises whether the pc
dtioners are entitled, on the facts stated, to
an alternative mandamus-
An answer to this question will involve the
consideration Of three others, viz:
LIST. Is thc claim Of the petitioners within the
puEsiew Of the stst4tes
ID. Haye the Mayer and Comptroller TIE power
action Of the Common Council, Or must that body
take action upon the report Of the commissioners
0?1r e. i i e eoRds ae Saa e SSe bsge
we're had, va1id and con&titntionals
And first is the claim Of the petitioners
within the purview Of the act and entitled to
the benefits of its provisions: The first sec
ton cited in terms refers only to scrip and
floating debt outstanding terms which would
not properly include unadjustcd claims. \ i
The original dcsi ign Of the Legislature doubt
| less was to provide only for that kind Of in-
| debtedncss; hence the terms employed. But
| BY the next section cited, which must have
| been added after the act was drawn, a second
class Of demands styled ''claims''-a word
| clearly distinct in its legal signifcation from
"debt"-is recognized and treated as EN-.
| braeed within the pufyicws Of the first sec,
ton. As those claims remained unadjustcd
and were considerable in amount, and many
| advisable to refer their adjustment to the Com
| missioners appointed by the act. That thcst
were not within contemplation when the tirs1
| section was drawn, is further manifested by
tue clause Of section 6614, which provides
that no claim shall be paid out Of the pro
cecds Of the bonds until the amount slla1
have been passed upon by the Commissioner.
and reported to the Council. Obviously Il
I was not the intention to require the commits
sioners to review and examine the city scfiI
and other adjusted and doating indebtedness
OF the city before that should be taken up
Yet strict and literal Interpretation of TIL
last section might possibly lead to that result
But arc the claims which may be passed
upon By the Commissioners entitled to tn
benefits Of the act? No part Of either sectio,
| declares 50. af1fmatiycly. The only clause re
lifting to their payment is the one first cited
I yy1lir n y1cCto1iva rheTan+a,+ The Ia,
guage Of the clause is: "No claim shall b
paid ont Of the proceeds Of the bonds unit
: passed upon and reported by the Commission
ers." The Legislative intent may, howeEc,
be ss clearly eyinesd by nsgatiye dselaEstio
construction it is the duty of the court t
give effect to the construction, however
may be expressed. In declaring that no clair
shall be paid unless passed upon BY the Con
missioncrs, the intention that it should b
paid, if 30 passed upon, is just as clearly an
). forcibly stated, or to be inferred, as il th
, clause had been thus written. And hence, th
I first section must be SO construed rs to ii
: | clude these claims and secure to the holder
l the full benefit of the act.
: I'd. Have the Mayor and Comptroller powt
G | to issue the bonds and retire the scrip an
aoating Indebtedness of the city, without Il
action Of the Common Council, or must tn,
body take some action upon the reports mac
e to them by the Comptroller and Comrnissio
duty Of issuing Imposed directly upon Il
Mayor and Comptroller or is it made to
pend upon the action Of tie Common Council
; IAiter considering the nature Of the act
: be done, and establishing the fact that Il
= Council have no power to rc-invcstigatc Il
claims passed upon By the Claims Comu,issio
err, the Court proeeeded:]
The conclusions, then, to which these vieE
S lead are, lat, That the holders Of CLAIM
# PISSED upon by the Commissioners arc equal
= with the holders Of scrip and other floating i
le Of the bonds authorized to be issued;
/, That the action of the Commissioners does Il
# depend OF the action Of the Council for
- flna1i.Ti, and: can neither be directly review
nor set aside by that body; Sd, That the du
Of issuing bonds and retiring Indebtedness
reposed IN the Mayor and Comptroller excl
L. siEely, and in case of refusal they may be COZ
IL PEELED to perform it by mandimus ii no otE
specific remedy exists. It is not sutRcie
That the party may bayc a remedy at Law
~ this case for the recovery Of bis demand. Z
"a less there is some other remedy by which t
~ " party can secure the ue7y right granted by Il
~ act, then there is no other specific and
C. cqnate remedy within the contemplation
j. this principle and he is therefore entitled
p debit i':stec to demand it by mcaus Of this vi
o. Confessedly in this view there is no otherre
f. edy, and unless the objections made to the
III under consideration are fatal to the law and
the proceedings Which hare been had under
N the writ must be granted
or These objections are twofold: First, II
y, the powers vested IN the commissioners
r. r. those powers by the Commissioners, the c
'e Of Chicago is in effect deprived Of the right
q. trial By jury. Both these objections may
a considered together, as both imply an exerc
'e. ofjudiclal power. The Legislature has ah!
TO Lutte control over municipal corporations
rrorfn nk1rr n,.5
pleasure. Tie constitution contains no
tv striction, express or implied, upon their acti
I'd in such cases. Fence the creation of a corr
" ration or the subsequent modification Of
ty charter by the Legislature, depends in no
,c- cree upon tile assent or dissent Of the inh:
~ itants. Il, therefore, the powers conferred
this nct arc unconstitutional, no objection {
be urged to the act on the ground Of impoli
r. Is the power given to tho commissioners
Tor dicla1? The statute in substance provit
re- power to issue and negotiate bonds, and II
&C. the proceeds retire a certain portion Of
city Indebtedness, including the kind
~ clnims held by the REALTORS in this apl
Tor cation. The only condition attached
their payment ont Of this fund is t
on they shall be first passed upon and
lsh justed by the Commissioners appointed by
ed act. The general rights of the creditor
not made to depend upon presentation
nc- his claim and its allowance by the Board.
to may present i OF not as he .pleascs, and
M omission to do SO can work no prcjud
~ to his legal right to seek redress and satis
m ton IA the courts. Il, however, he Sc
IA satisfaction out Of the fund contemplated
,pt the Law, he must first procure the ad5ustna
ldc Of his claim by the Commissioners. !
privilege, conferred BY the act, is in the nat
on. Of q gratuity and the party can only ncquir
By compliance with the Law. He has
Ing right to demand 1t upon any other conditl
IL Before that right attaches, the law may be
nca | pca1es What effect q fjsallowanrc of