Beardsworth v. Whiteside & Rock Island Special Drainage Dist.

• Decision Date: 21 April 1934
• Docket Number: No. 22273.,22273.
• Citation: 190 N.E. 310,356 Ill. 158
• Parties: BEARDSWORTH et al. v. WHITESIDE AND ROCK ISLAND SPECIAL DRAINAGE DIST. et al.
• Court: Illinois Supreme Court

356 Ill. 158

190 N.E. 310

BEARDSWORTH et al.

v.WHITESIDE AND ROCK ISLAND SPECIAL DRAINAGE DIST. et al.

No. 22273.

Supreme Court of Illinois.

April 21, 1934.

Suit by H. G. Beardsworth and others against the Whiteside and Rock Island Special Drainage District and others. From an adverse decree, the defendants appealed to the Appellate Court, which transferred the cause to the Supreme Court on jurisdictional grounds.

Affirmed in part, and reversed in part.Appeal from Circuit Court, Whiteside County; Leonard E. Telleen, judge.

Craig & Craig, of Mattoon, McCalmont, Ramsay & Little, of Morrison, and Charles C. McMahon, of Fulton, for appellants.

Wood & McNeal, of Moline, for appellees.

STONE, Justice.

This case is here on appeal from the circuit court of Whiteside county taken first to the Appellate Court and by it transferred to this court on jurisdictional grounds. The circuit court, on amended and supplemental bills of appellees, entered a decree finding that certain assessments of the Whiteside and Rock Island Special Drainage District were void and enjoining the district from collecting the same on appellees' property. The decree also enjoined the payment, from any funds on hand, of the claims of certain named appellants for services rendered the district.

The formation of the district, as set out in the bill, was under the Farm Drainage Act. In 1920 the district made a new classification of lands and levied an assessment for the cost of a new improvement. It was held in People v. Allen, 317 Ill. 92, 147 N. E. 479, and in the same case in 330 Ill. 433, 161 N. E. 867, that none of the lands of the appellees here were benefited by the improvement and were not liable for the payment of any part of that assessment. The bill here alleges that notwithstanding these facts the county collector made application for judgment and sale against the lands of appellees for remaining and subsequent installments of that assessment; that appellees filed objections thereto and application for judgment was denied: that in the years 1923 to 1928 the district, under the classification used in the 1920 assessment, made levies of various amounts for interest and repairs, which were illegal assessments, in that they were made in a lump sum, without any specification as to what repairs were provided for; and that attempts were made by the collector to collect these assessments against the lands of the appellees, and it was objected that the assessments were not legally made and that as to assessments for interest appellees' lands were not liable therefor. It is alleged in the bill that in each of the years 1926, 1927, and 1928 the county collector filed an application for judgment on the third, fourth, and fifth installments of the assessments levied for interest and repairs; that appellees filed objections thereto and the county court denied the application, but the county collector was allowed to withdraw his application for judgment,and so the assessments have remained as clouds on the title of the appelles' land, which the bill prays may be removed and the defendants enjoined from attempting to collect any such tax. The bill also alleges that in January, 1926, a levy was made to pay certain warrants issued to the appellants' attorneys, surveyor, and others, which levy was void for the reason that it was made for the payment of past indebtedness.

A supplemental bill was filed in 1930 setting out that a second assessment for the purpose of paying attorneys, engineers, and commissioners was made by the commissioners in 1929 and extended against the lands of appellees, which is likewise void. The prayer of the bill and supplemental bill is that the assessment for repairs and interest made each year from 1923 to 1928, inclusive, and the assessments of 1926 and 1929 for the purpose of paying attorneys, engineers, commissioners, and other defendants, be declared void, and that the claims of the attorneys, engineers, and commissioners and other defendants be decreed invalid as against the district, and that all warrants issue to such persons for services rendered, for which no previous provision had been made for payment, be declared void and that the treasurer be enjoined from paying any such warrants and orders, and that those specifically named be enjoined from collecting or attempting to collect from the district any sum claimed by them to be for services rendered before the assessment was made to provide for such services.

Appellants demurred to the bill and their demurrer was overruled. They thereupon answered, admitting the organization of the district and denying all material allegations of the bill as amended and asserting the validity of the various assessments and warrants. A hearing before a master in chancery was had. The chancellor overruled exceptions to his report and entered a decree granting the relief prayed except as to the levy of a certain deficiency of November 1, 1928, amounting to $2,000, no part of which was levied on the lands of appellees and no part thereof paid by them. No cross-errors were assigned and that particular levy is out of the case.

Appellants have filed many assignments of error, which, however, may be grouped under the following heads: (1) The court of chancery was without jurisdiction, as appellees had an adequate remedy at law; (2) the levies involved were legal and valid; (3) as appellees paid no part of the moneys on hand for the various levies but the balances in the various funds of the district were voluntarily paid to meet certain obligations, it was error to enjoin their application to such purposes; and (4) the decree enjoining payment of the warrants issued is erroneous because services performed by the various appellants were legal and valid.

Appellants' first contention-i. e., that a court of chancery was without jurisdiction-cannot be sustained. Though the rule is that in cases where an adequate remedy at law exists a court of equity will not take jurisdiction (Herschbach v. Kaskaskia Sanitary District, 265 Ill. 388, 106 N. E. 942), and such rule is applicable to a bill to enjoin the collection of a tax (Correll v. smith, 221 Ill. 149, 77 N. E. 440;Ayers v. Widmayer, 188 Ill. 121, 58 N. E. 956), it is also the rule that where, as here, the bill alleges that the county collector has been permitted to withdraw his application for judgment upon the filing of objections thereto at various times, leaving the assessments as clouds on the title of the complainant, and where the bill seeks not only to restrain the collection of a void tax but also the expenditure of money already collected, equity will take jurisdiction not only on the ground of inadequacy of remedy at law but likewise to prevent a multiplicity of suits. Herschbach v. Kaskaskia Sanitary District, supra; Chicago & Milwaukee Electric Railway Co. v. Vollman, 213 Ill. 609, 73 N. E. 360;Wilson v. Board of Trustees, 133 Ill. 443, 27 N. E. 203. Since the bill and supplemental bill in the case before us make charges of such character, the subject-matter is brought within the jurisdiction of the court of equity.

Appellants, in discussing their claim that the various levies were legal and valid, say that in 1930 the form of organization of the district was changed from the Farm Drainage Act, under which it was organized, to the Levee Act (Smith-Hurd Rev. St. 1933, c. 42, § 1 et seq.), which act expressly provides that a levy may be made to pay prior obligations. They concede, however, that the levies in this case were made prior to the change in the organization of the district, and that under the Farm Drainage Act the district did not have power to levy assessments for past obligations. The expenses of the organization are not here involved. They also say that levies for repairs made during the various years were so made under section 70 of the Farm Drainage Act (Smith-Hurd Rev. st. 1933, c. 42, § 155, p. 1183). That section authorizes the levy of a tax only for the purpose of raising such amount as may be ‘necessary to be levied to keep the work, or any part thereof, in repair for the year next ensuing’ and for the payment of any deficiency that may exist in the funds raised in other years to pay for repairs which were made in such years. The statement of the commissioners, however, in their certificate, that the tax levied is one for repairs, is not conclusive, and where it is shown that it is not a tax for that purpose it cannot be sustained as a repair tax under section 70. People v. McDougal, 205 Ill. 636, 69 N. E. 95;Wabash Railroad Co. v. People, 187 Ill. 289, 58 N. E. 254. It is charged in the bill that these levies, while ostensibly made for repairs, were in reality for the purpose of using the funds collected to pay the commissioners and their solicitors and surveyors exorbitant and illegal fees. The chancellor found in his decree, that the levies made in each year from 1923 to 1928, inclusive, for repairs, aggregated $27,000 and those for interest aggregated $17,565.78. He also found that all of the assessments for repairs were made in a lump sum, without any specifications as to what repairs should be made, with the exception of one item of $500 designated for repair of floodgates; that all such assessments made subsequent to 1920 were made without notice until after they had been filed with the clerk of the district; that the amount actually expended by the district for repairs during those years was but a very small part of the amount levied for such purpose; that no plans were made during that period, or prior thereto, for any repairs, and that the assessments were not made with any intention of using the sums raised for that purpose; that substantially all the money used from such levies was used to pay commissioners, attorneys, and engineers fees in connection with litigation to collect the assessment in 1920 from the appellees; and that the commissioners either paid the fees directly from the...