People ex rel. James v. Seaman

• Citation: 88 N.E. 212,239 Ill. 611
• Parties: PEOPLE ex rel. JAMES, County Treasurer, v. SEAMAN.
• Decision Date: 23 April 1909
• Court: Supreme Court of Illinois

239 Ill. 611

88 N.E. 212

PEOPLE ex rel. JAMES, County Treasurer,

v.SEAMAN.

Supreme Court of Illinois.

April 23, 1909.

Appeal from Kane County Court; Frank G. Plain, Judge.

Action by the People, on the relation of George A. James, County Treasurer, against L. N. Seaman, as executor of the estate of Edward C. Lovell, deceased. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

W. J. Tyers, State's Atty. (Frank W. Joslyn and R. Waite Joslyn, of counsel), for appellant.

Botsford, Wayne & Botsford and Ernest C. Luther, for appellee.

VICKERS, J.

This is an appeal from a judgment of the county court of Kane county sustaining certain objections and refusing judgment for a drainage tax levied by the Rutland and Grafton Drainage District, which was organized in 1885 under the levee act.

L. N. Seaman, as executor of the estate of Edward C. Lovell, deceased, filed 58 objections to the rendition of judgment against certain lands which belonged to Edward C. Lovell at the time of his death. It will not be necessary, in the view that we take of this case, to consider any of the objections interposed. The county collector made a prima facie case entitling him to judgment if for any reason none of the objections ought to be sustained.

In support of his objections, appellee introduced a copy of the original petition presented to the county court for the organization of the drainage district, together with various notices, affidavits, and orders of the court, constituting the record in the original proceeding for the organization of this drainage district. From the record thus introduced it appears that the particular tracts of land for which objection is now made were owned by Newell Marks at the time the drainage district was organized, and that the assessment of benefits against said lands was made in his name. It also appears from the original petition for the organization of the drainage district that H. N. Marks was one of the original petitioners, and that it was upon his petition, together with a large number of other landowners, that the district in question was organized. It also appears from the order of the court granting the prayer of such petition that H. N. Marks was by the court appointed a member of the first board of drainage commissioners of said district, and that he served in that capacity until the district was completely organized and the assessment confirmed. It also appears from the affidavits in the record that the said H. N. Marks performed official services for the district, for which he received compensation of $176.40. The record shows, further, that H. N. Marks participated actively as a commissioner in all the business of the drainage district during the first few years of its existence. In all the places where Marks signs his name it appears that he signed by his initials ‘H. N.,’ but in other portions of the record where he is referred to by other persons he is sometimes described as Henry N. Marks or as Newell Marks.

Appellee contends that the evidence in this record does not warrant the conclusion that Newell Marks, who was the owner at the time the district was organized of the lands objected for, is the same person who was appointed commissioner under the name of ‘H. N. Marks.’ We think the evidence justifies us in finding that ‘Newell Marks' and ‘H. N. Marks' were one and the same person. We come to this conclusion from a consideration of the original list of landowners in the district against whom assessments were made. The only person by the name of Marks who owned any land in the district was Newell Marks. H. N. Marks signed the petition. Only landowners in the proposed territory were qualified to be petitioners. If H. N. Marks is any other than the Newell Marks who owned land in the district, then we have a person signing the petition, and afterwards being appointed one of the drainage commissioners for the district and serving in that capacity, who owned no land in the district. Again, the record shows that on the 21st day of February, 1885, an affidavit was made, which recited that ‘Newell H. Marks, being duly sworn, on his oath deposes and says that he is a resident of the township of Rutland, in said county of Kane and state of Illinois, and * * * that he is one of the signers of the said petition, and that said petition contains the signatures of a majority of the owners of land in said proposed district, and that such owners are of lawful age and they represent one-third in area of the lands to be affected by...