Drainage Com'rs Dist. No. 2 v. Kinney

• Decision Date: 20 February 1908
• Citation: 84 N.E. 34,233 Ill. 67
• Parties: DRAINAGE COM'RS DIST. NO. 2 et al. v. KINNEY et al.
• Court: Illinois Supreme Court

233 Ill. 67

84 N.E. 34

DRAINAGE COM'RS DIST. NO. 2 et al.

v.KINNEY et al.

Supreme Court of Illinois.

Feb. 20, 1908.

Appeal from Circuit Court, Christian County; A. M. Rose, Judge.

Action by A. T. Kinney and others against the Drainage Commissioners of Drainage District No. 2 and others. From a decree for complainants, defendants appeal. Affirmed.

James M. Taylor, Leslie J. Taylor, and Hogan & Wallace, for appellants.

J. C. & W. B. McBride, for appellees.

This is an appeal from a decree of the circuit court of Christian county perpetually enjoining the collection of a special assessment levied by appellants. Appellees are 19 owner of lands in the district. The case presented upon the pleadings and evidence in the court below was substantially as follows: Drainage District No. 2 was duly organized on December 19, 1903, and thereafter an engineer was employed to make a survey and estimate for a system of drainage. His estimate as to the part to be paid by the drainage district was $2,260. Besides this was included $1,420, which it appears the city of Taylorville had agreed to contribute towards the construction of part of the sewer, in order that it might use the same. Thereupon the commissioners fixed a graduated scale for each tract of land, and on February 6, 1904, levied an assessment of $2,533.88. The appellees paid their respective portions of this assessment. The drainage commissioners proceeded to advertise for bids, and found that, by reason of the advance in the price of tile and labor and other, causes, the lowest bid exceeded the estimate by about one-third. Contracts were let and the work was performed, costing considerably more than the first assessment. Appellants contend that all of the work except the making of a certain tile well, where the city drains connected with the drains of the district, was work which was included in the original contract and contemplated to be done when the making of the system was first entered upon. In order to meet the increased expenditure, the commissioners made another levy for $2,472, which is the one to which appellees object. This levy was made November 25, 1904. The work had been completed and accepted November 18, 1904.

CARTER, J. (after stating the facts as above).

Appellees concede that there is no charge of fraud, nor is it shown that there have been any improper or improvident expenditures by appellants. Appellees offered to show on the bearing that the benefits to the lands in the district resultingfrom the drainage system would not be equal to the entire cost involved, including this assessment. The court would not permit evidence to be introduced to support this offer. Appellees' chief contention is, even conceding good faith and fidelity of the drainage commissioners and conceding that the landowners in the district, including appellees, have severally received a fair equivalent in the enhanced value of their lands for every dollar of this assessment, still they insist this levy of the second assessment was not authorized by law, because the record shows that the work was performed and the indebtedness incurred prior to the said levy. They insist that a fair construction of the farm drainage act in all its various provisions (Hurd's Rev. St. 1905, p. 799, c. 42), and especially sections 41 (page 810) and 63 and 64 (page 820) of that act, is clearly to the effect that it was not the intention of the Legislature to permit indebtedness to be incurred in advance and allow a levy to be then made for the purpose of meeting such indebtedness. They cite in support of this contention Winkelmann v. Drainage District, 170 Ill. 37, 48 N. E. 715, and Ahrens v. Drainage District, 170 Ill. 262, 48 N. E. 971. Counsel for appellants answer that these decisions were rendered, not in construing the present act, but the levee drainage act. Hurd's Rev. St. 1905, p. 775. This is admitted to be true, but it is still insisted that the reasoning in those cases is also applicable to the farm drainage act.

While it has been repeatedly held by this court that these two acts are independent codes of law, and that a drainage district organized under one act is subject only to the provisions of that act and that the provisions of the other act have no application (Chicago, Burlington & Quincy Railway Co. v. People, 212 Ill. 103, 72 N. E. 219, and cases cited), yet, if sections 63 and 64 of the farm drainage act apply to the levy of this additional assessment for the district here in question, then the reasoning in the Winkelmann and Ahrens Cases, supra, is substantially conclusive on the question now under consideration, for these last sections provide, as did certain sections under discussion in those cases, that the commissioners may borrow money, in anticipation of that to be raised by the collection of assessments, not exceeding 90 per cent. of any assessment or levy unpaid at the time of borrowing the same, as provided under the other act, and said sections in this act, taken in connection with the entire act, as clearly indicate as do the provisions in the levee act that the commissioners have no power to contract debts over and above the amount of the assessment. As stated in Chicago, Burlington & Quincy Railway Co. v. People, 212 Ill. 109, 72 N. E. 221, the farm drainage act provides for various kinds of districts, and there is a suggestion in the briefs that sections 63 and 64 refer only to special drainage districts. Taking the entire act together, we think it is obvious that the Legislature did not intend that when special assessments, or a second or additional special assessment, should be levied, one class of districts should have power to levy in one way and another class in some other manner. Certainly this would not be the construction that would be placed upon this statute unless the various provisions plainly and clearly required it. The various provisions, considered together, clearly indicate, not only as to the first assessment, but as to the additional levies, that they shall be carried on in practically the same manner. Provisions of a general nature in this act must be held to apply to all the various districts formed...