Deneen v. Deneen

• Decision Date: 16 June 1920
• Docket Number: No. 13364.,13364.
• Citation: Deneen v. Deneen, 293 Ill. 454, 127 N.E. 700 (Ill. 1920)
• Parties: DENEEN et al. v. DENEEN et al.
• Court: Illinois Supreme Court

293 Ill. 454

127 N.E. 700

DENEEN et al.

v.DENEEN et al.

No. 13364.

Supreme Court of Illinois.

June 16, 1920.

Error to McHenry County Court; Charles P. Barnes, Judge.

Petition by George Deneen and others against Timothy J. Deneen and others for the abandonment of a drainage district. There was an order granting the petition on payment of court costs by petitioners, and respondents bring error.

Reversed and remanded.M. A. Carmack, of Woodstock, R. F. Marshall, of Harvard, and David T. Smiley, of Woodstock, for plaintiffs in error.

Paul J. Donovan, of Harvard (E. H. Waite, of Woodstock, of counsel), for defendants in error.

CARTWRIGHT, C. J.

Cane Creek drainage district of the towns of Dunham and Marengo, in the county of McHenry, was organized by order of the county court and the plaintiffs in error were appointed commissioners. They went upon the lands of the district and formed a plan for drainage and reported the same with the report of the engineer employed by them. Their report was confirmed by the court, and afterward a petition was filed by defendants in error, owners of lands included in the district, praying that the whole system of proposed works should be abandoned and the district abolished and that the court should enter an order according to the prayer of the petition upon the payment of court costs. The commissioners appeared and filed their written motion to strike the petition from the files on the ground that the act under which it was filed was unconstitutional and void on account of a failure to make any provision for the payment of debts and expenses and the performance of contract obligations entered into by the commissioners for and in behalf of the district previous to the filing of the petition, and thereby the act impaired the obligations of lawful contracts. The court took the motion under advisement, to be decided with the hearing on the petition, and on that hearing the commissioners admitted that the contract for the construction of the proposed work in the drainage district had not yet been made by the commissioners, and that the petition to abandon the district contained a majority of all the landowners of the district owning more than one-half in area of the lands therein. The court denied the motion to strike the petition from the files, granted the prayer of the petition, and entered an order that the district be abolished, upon condition that the petitioners should pay the court costs within 30 days. Statements of the accounts of the engineer and attorneys employed and of the commissioners were filed, and the commissioners moved the court to tax the same as court costs. The petitioners admitted that the fees and incidental expenses as shown by the bills were reasonable, but objected to the taxing of the same as court costs on the ground that they were not taxable as costs under the statute. The court adopted that view and denied the motion because the per diem and expenses of the commissioners could not be taxed as court costs. A writ of error was sued out of this court to bring the record here for review.

The court did not err in refusing to tax the expenses of the commissioners as court costs. At common law costs were not recovered, and the right to costs, as such, rests entirely upon and is limited by statutory provisions. Unless a statute clearly gives authority to tax specific items as costs it cannot be done. Smith v. McLaughlin, 77 Ill. 596;Dobler v. Village of Warren, 174 Ill. 92, 50 N. E. 1048;Gehrke v. Gehrke, 190 Ill. 166, 60 N. E. 59;Metropolitan Life Ins. Co. v. Kinsley, 269 Ill. 529, 109 N. E. 1011.

Section 44 of the Levee Act (Hurd's Rev. St. 1917, c. 42), under which the Cane Creek drainage district was organized, as amended in 1919 (Laws of 1919, p. 440), contains the following provision:

‘And at any time before the contract for the construction of the proposed works shall have been made, upon presentation to the county court of a petition signed by a majority in number of all the landowners of such district, and owning more than one-half in area of lands in the district to which the petitioners belong, praying that the whole system of proposed works may be abandoned and the district abolished, the court shall enter upon its record an order granting the prayer of such petition, upon condition that the petitioner pay all court costs within thirty (30) days from the rendition of such order. If such petitioners fail to comply with such order, it shall be considered after the expiration of said thirty (30) days, as of no force or effect whatever. If the district be abolished under this section, assessments collected shall be refunded to the persons who have paid the same, or their representatives.’

This law upon its face and by its terms does not purport to affect or in any way modify, abrogate, or change any contract or destroy the remedy provided by law for the performance of any agreement, and such a law may be operative in some cases to which it applies without impairing any constitutional right and is therefore not wholly void. Its operation may interfere with constitutional rights, dependent upon the existence of contract obligations and the effect of the application of the law in the impairment of such obligations, and when so applied it is unconstitutional. If there is no creditor of a drainage district and no liability except for court costs, no constitutional right will be invaded, and courts do not entertain objections to the constitutionality of a statute unless the objection is made by one whose rights have been in some way affected. People v. McBride, 234 Ill. 146, 84 N. E. 865,123 Am. St. Rep. 82,14 Ann. Cas. 994.

[3] If there is a creditor or a party to a contract whose right is affected or remedy destroyed he may be heard to assert his right, and no statute will be permitted to impair the obligation of his contract. The statute declares that upon the organization of a drainage district it shall in its corporate name, by its commissioners, henceforth have power to contract and be contracted with, sue and be sued, plead and be impleaded, and do and perform, in the corporate name of said district, all such acts and things as may be necessary for the accomplishment of the purposes of the act. The commissioners are to go upon the land and determine upon a system of drainage and employ a competent engineer and make their report in writing, with maps, profiles, and estimates of cost. The commissioners of Cane Creek drainage district, acting for the district, exercised these...