Broadway Bank of St. Louis v. Mcgee Creek Levee & Drainage Dist.

• Decision Date: 21 April 1920
• Docket Number: No. 12952.,12952.
• Citation: 127 N.E. 165,292 Ill. 560
• Court: Illinois Supreme Court
• Parties: BROADWAY BANK OF ST. LOUIS, MO., v. McGEE CREEK LEVEE & DRAINAGE DIST.

292 Ill. 560

127 N.E. 165

BROADWAY BANK OF ST. LOUIS, MO.,

v.McGEE CREEK LEVEE & DRAINAGE DIST.

No. 12952.

Supreme Court of Illinois.

April 21, 1920.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Pike County; Harry Higbee, Judge.

Suit by the broadway Bank of St. Louis, Mo., against the McGee Creek Levee & Drainage District. From the decree, defendant appealed to the Appellate Court, which modified, and, as modified, affirmed, the decree, and plaintiff brings certiorari.

Judgment of the Appellate Court affirmed.

George J. Breaker, of St. Louis, Mo., and Ben H. Matthews and William & Barry Mumford, all of Pittsfield (William M. Fitch, of St. Louis, Mo., of counsel), for plaintiff in error.

W. E. Williams and A. Clay Williams, both of Pittsfield, for defendant in error.

STONE, J.

This cause comes to this court on writ of certiorari to the Appellate Court for the Third District to review the judgment there entered on appeal from the circuit court of Pike county.

Defendant in error is a levee and drainage district organized in the county court of Pike county, Ill., in 1905, and comprises about 11,000 acres of bottom lands subject to overflow from the Illinois river. In order to pay for the construction of certain levees, drains, and ditches, and to purchase the necessary pumping plant and equipment, an original assessment was extended against the lands in the district to the amount of $123,688.93, against which bonds were issued, as provided by statute, in an amount equal to 90 per cent. of such original assessment, and made a lien against the whole of the original assessment. This assessment was divided into 15 payments, the first due December 1, 1911, and the last due December 1, 1925. The original assessment was found to be insufficient to pay for the proposed construction, the proposed installation of a pumping plant, etc., and a petition for an additional assessmentof $62,720 was filed to the June term, 1908, of the county court. The second or additional assessment was confirmed by said court on September 7, 1908, and bonds to the amount of 90 per cent. of the additional assessment were issued and make a lien against the whole of the additional assessment. This assessment was divided into 11 installments, the first falling due December 1, 1911, and the last December 1, 1921. At the time of the presentation of the petition for the additional assessment, the commissioners of the district asked the court to remit to the landowners that portion of the 10 per cent. of the original assessment which should not be required to pay the bonds issued against it. The additional assessment was confirmed, and the court ordered that the portion of 10 per cent. of the original assessment not required to pay the bonds issued against the same should be remitted, and not collected.

The second or additional assessment proved to be insufficient to complete the improvement, and in order to avoid the expense and delay of a third assessment the commissioners filed a petition in the county court to the April term, 1909, for leave to borrow, under authority of section 38 of the Levee Act (Hurd's Rev. St. 1917, c. 42), a sum of money not exceeding $7,000, and to issue notes or warrants against any funds then on hand in the treasury of the district and against the 10 per cent. of the last or additional assessment of $62,720, which warrants, when issued, were to bear interest from date at 6 per cent. per annum. On this petition the county court ordered:

‘That said commissioners be and they are hereby authorized to issue warrants against any funds now in the treasury of said district and against said last special assessment in excess of 90 per cent. thereof, and that they be authorized to negotiate said bonds at their face value and to use the proceeds thereof for the completion of said work.’

Subsequent to said order the commissioners, on April 3, 1909, executed and delivered to J. E. Franklin, from whom this money was borrowed, their warrant for the sum of $7,000, to be paid ‘out of any moneys now in the treasury of said district and out of any moneys from any assessments now levied not otherwise appropriated, with interest from date at the rate of 6 per cent. per annum.’ This warrant was subsequently, for value received, assigned to and became the property of the plaintiff in error.

The plaintiff in error filed its amended bill of complaint in the circuit court of Pike county for the purpose of (1) setting aside the order of the county court, entered in 1908, remitting that part of the original assessment which was not required to pay the first issue of bonds; (2) to make said warrant a lien on the surplus of both the original and additional assessments after both issues of bonds were retired; (3) to enjoin and restrain the commissioners from impairing said lien. The defendant in error by its answer admitted certain allegations of the amended bill, but expressly denied the allegation that the warrant was a lien against any part of the original assessment. The chancellor found and decreed that the warrant under date of April 3, 1909, was a lien against the surplus of the original assessment, as well as the additional assessment after the bonds were paid, and set aside the order of the county court, entered in 1908, remitting that part of the original assessment not required to pay the first bond, and enjoined the commissioners from impairing said lien. The defendant in error appealed to the Appellate Court, where it was held that the warrant was not a lien against the original assessment, or any part thereof, and to this extent the decree of the circuit court was modified, and, as modified, affirmed.

It is contended by the plaintiff in error that the Appellate Court erred in modifying the decree of the circuit court; that it should have taken such action as would give to the plaintiff in error the security of a judgment against the defendant in error, either there or on remanding the cause to the circuit court. It is evident from an examination of the petition filed by the commissioners for authority of the county court to borrow the $7,000 involved, and the order of the court on said petition, that the commissioners were authorized to borrow this money in anticipation of the collection of the second assessment, and that the warrant issued...