Blake v. the People

• Decision Date: 26 March 1884
• Citation: 1884 WL 9818,109 Ill. 504
• Parties: M. M. BLAKEv.THE PEOPLE, for use of A. Caldwell.
• Court: Illinois Supreme Court

109 Ill. 504

1884 WL 9818 (Ill.)

M. M. BLAKE

v.THE PEOPLE, for use of A. Caldwell.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Pike county; the Hon. EDWARD DOOCEY, Judge, presiding.

Mr. WM. A. GRIMSHAW, and Messrs. ORR & CRAWFORD, for the appellant:

As to when retrospective legislation is operative and binding, counsel cited Town of Fox v. Town of Kendall, 97 Ill. 72; 7 Wait's Actions and Defences, 566, 569; Gillinwater v. Mississippi R. R. Co. 13 Id. 1; Leak v. Richman County, 64 N. C. 132; The People ex rel. v. Peacock, 98 Ill. 172; United States Mortgage Co. v. Gross et al. 93 Id. 484; The People ex rel. v. McCrea, 95 Id. 109. Ex post facto laws are not favored. Garrett v. Higgins, 1 Scam. 335; Bruce v. Schuyler, 4 Gilm. 221; Parmalee v. Lawrence, 44 Ill. 405; Hunter v. Hatch, 45 Id. 175; Billings v. Riggs, 56 Id. 483; Hosmer v. The People, 96 Id. 58.

The Drainage act of 1879 embraces more than one subject. Drains and ditches constitute a different subject from that of a levee. Updike v. Wright, 81 Ill. 49; Const. of 1870, art. 4, sec. 13.

Messrs. MATTHEWS, WIKE & HIGBEE, for the appellees, among numerous other questions discussed the following:

The Drainage act is valid, under the constitutional amendment of 1878 to section 31, article 4. Moore v. People, 106 Ill. 382. Curative legislation is allowable. Mitchell v. Deeds, 49 Id. 416; Cooley's Const. Lim. sec. 374; Cowgill v. Long, 15 Ill. 202. Retrospective laws. Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Id. 88. Confirmation of assessment as res judicata. Andrews v. People ex rel. 84 Ill. 28; People ex rel. v. Brislin, 80 Id. 423; Lehmer v. People ex rel. Id. 601.

“Tax” and “assessment,” as used in the statute, are synonymous. Webster v. People, 98 Ill. 343; People v. Springer, 106 Id. 544; Revenue act, sec. 292.

Messrs. IRWIN & DOBBINS, also, for the appellees:

That the confirmation of the assessment is conclusive, see Schertz v. The People, 105 Ill. 32; The People v. Brislin, 80 Id. 423.

Requiring the county court to find certain facts preliminary to the formation of a drainage district, does not render the act unconstitutional. The People v. Morgan, 90 Ill. 558.

The notice given under section 3 of the act was sufficient. Madden v. Cooper, 47 Ill. 359; Garrett v. Moss, 20 Id. 553; Ricketts v. Village of Hyde Park, 85 Id. 110; Pearson v. Bradley, 48 Id. 250; Gilmore v. Sapp, 100 Id. 301. In all cases where service is to be made by publication, if the record recites that due notice has been given, the finding is conclusive. Donlin v. Hettinger, 57 Ill. 348; Osgood v. Blackmore, 59 Id. 261; Bennett v. Wolf, 70 Id. 76.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This appeal brings before us for review the record of a judgment of the county court of Pike county, in favor of the collector of that county, against a certain tract of land of the appellant, for the amount of a special assessment of the “Sny Island Levee Drainage District.” That district is claimed to be incorporated under and by virtue of the provisions of an act of the General Assembly, entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29, 1879. The act provides for the formation of drainage districts, and invests the districts, when formed, with power to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, and also to maintain and keep in repair any such drain, ditch or levee heretofore constructed under any of the laws of this State. Appellant contends that the act is unconstitutional and void, and that therefore no valid corporation can be created under it, and this must, of course, be passed upon before the consideration of other questions arising in the case, which presuppose the validity of the act. The contention is, that the act is in contravention of the constitution in two respects: First, in that it embraces more than one subject, and is therefore within the prohibition of section 13, article 4; and second, in that it authorizes the county court, and not the owners of lands, to create the corporation, and is not, therefore, within the letter or the spirit of the amendment to section 31, article 4, adopted by the people at the November election in 1878, apart from which amendment the General Assembly possessed no power to authorize the creation of such corporation.

The same prohibition as that contained in section 13, article 4, but limited to private or local legislation, was in the constitution of 1848, and it was uniformly construed liberally in favor of the validity of enactments. The fact that many things of a diverse nature are authorized or required to be done, is unimportant, provided the doing of them may fairly be regarded as in furtherance of the general subject of the enactment. Belleville R. R. Co. v. Gregory, 15 Ill. 20; Firemen's Benevolent Association v. Lounsbury, 21 Id. 511; Board of Supervisors v. The People, 25 Id. 181; O'Leary v. County of Cook, 28 Id. 534; Neifing v. Pontiac, 56 Id. 172; Prescott v. Chicago, 60 Id. 121; The People v. Brislin, 80 Id. 423; Johnson v. The People, 83 Id. 431; The People v. Loewenthal, 93 Id. 191; Town of Abington v. Cabeen, 106 Id. 200; Potwin v. Johnson, 108 Id. 70; City of Virden v. Allan, 107 Id. 505.

The subject of this enactment was the protection of land against surplus water,--or, in other words, directing the flow of water for the protection of lands; and this is equally accomplished by drains and ditches, or by levees, the levee directing the flow of the water that would otherwise come upon the land, away from it, and the drains and ditches directing the flow of water off the land. The motives in directing the flow of the water, of course, do not change the definition of the act of so doing, and must, therefore, be unimportant. We are clearly of opinion that the objection is untenable. The title to the act unnecessarily specifies the motives or purposes in aid of which it is enacted, and, to some extent, the means by which the flow of water is to be directed, but this is not objectionable. It discloses, though with more words than are absolutely necessary, very clearly, that the subject of the act is that we have indicate. At most, it is but unnecessary particularity. Updike v. Wright, 81 Ill. 49, has no bearing on the present question. What was there said in regard to levees and drains, etc., was in reference to a construction of the peculiar language of the statute then before the court, which did not present the question of whether levees and drains may be reasonably regarded as included within one general subject.

The amendment to section 31, article 4, of the constitution, adopted at the November election, 1878, reads as follows: “The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessment upon the property benefited thereby.” Very clearly, according to the familiar rules of construing language, the nominative to the verb “provide,” is “the General Assembly,” and not “the owners of lands.” The General Assembly may provide for the organization of drainage districts, and vest the corporate authorities thereof with power, etc. It would be absurd to say the owners of lands could vest the corporate authorities with power, especially over the lands of others not uniting in creating the corporation, which is indispensable to the effectiveness of the contemplated corporation.

We are unable to discover, here, any limitation or restriction upon the General Assembly as to the agencies to be used in the creation of the corporation. Surely there can be no reason why the county court may not be invested with power to inquire into and find the existence of certain preliminary facts deemed important as prerequisites to the corporation. This is not unusual, but in all like cases, where the facts deemed necessary to be found are of a nature that the General Assembly can not conveniently investigate them, the practice has been to refer their determination to some local tribunal. ( The People v. Reynolds, 5 Gilm. 1; The People ex rel. v. Salomon, 51 Ill. 37.) The latter case was identical in principle in this respect with the present case. It is the statute that creates the corporation,--not the county court; but the statute only becomes operative when the prescribed facts are found, and the finding is entered of record by the county court, as directed by the act. The questions of fact referred to the county court are such as a court is peculiarly competent to pass upon, and we are of opinion the objection is destitute of merit. In another respect the constitutionality of this act was questioned by counsel in Moore v. The People ex rel. 106 Ill. 376, and we there held it free of constitutional objection. We now again hold, after considering the present objections, that it is a valid constitutional enactment.

Assuming, then, the act to be valid, we come to the next objection urged against the judgment below by counsel for appellant, which is, that no legal corporation has been created here, because the terms of the act have not been complied with in the several steps required to be taken for the purpose of creating such corporation. Counsel particularly specify and object that the notice required of the presentation of the petition to the county court for the formation of the district...