Drainage Com'rs of Dist. No. 2 of Town of Havana v. Mansfield

• Decision Date: 20 April 1932
• Docket Number: No. 20914.,20914.
• Citation: 180 N.E. 630,348 Ill. 50
• Court: Illinois Supreme Court
• Parties: DRAINAGE COM'RS OF DIST. NO. 2 OF TOWN OF HAVANA v. MANSFIELD et al.

348 Ill. 50

180 N.E. 630

DRAINAGE COM'RS OF DIST. NO. 2 OF TOWN OF HAVANA

v.MANSFIELD et al.

No. 20914.

Supreme Court of Illinois.

Feb. 19, 1932.

Rehearing Denied April 20, 1932.

Commissioner's Opinion.

Suit by the Drainage Commissioners of District No. 5 of the Town of Havana, County of Mason, to foreclose a drainage tax lien against the lands of Henry Mansfield, John Mansfield, Brasher Mansfield, and others, in which the two last-named defendants, by their guardian ad litem, filed a cross-bill. Decree for complainant, and defendants appeal.

Affirmed.

STONE, C. J., dissenting.

Appeal from Circuit Court, Mason County; Guy R. Williams, judge.

Henry Mansfield and David J. Cowan, guardian ad litem, both of Peoria, for appellants.

Scott W. Lucas, of Havana, for appellees.

EDMUNDS, C.

Under the provisions of section 72 of the Farm Drainage Act (Cahill's Rev. St. 1931, c. 42, par. 195), the drainage commissioners of district No. 2 of the town of Havana, county of Mason, state of Illinois, filed a bill in the circuit court of Mason county praying foreclosure of a drainage tax lien against the lands of Henry Mansfield, John Mansfield, Brasher Mansfield, and others. John and Brasher, sons of Henry, were minors, and a guardian ad litem was duly appointed for them. Henry held a life estate in the Mansfield lands and John and Brasher were contingent remaindermen. Answers were filed, and John and Brasher by their guardian ad litem filed a cross-bill in the nature of an original bill to review the proceedings of the drainage commissioners whereby the Mansfield lands, among others, were classified and assessed for the drainage taxes out of which arose the lien sought to be foreclosed. The court sustained a demurrer to the cross-bill, and after a hearing entered a decree in accordance with the prayer of the bill. From this decree the Mansfields have appealed.

The proceedings of the commissioners at which the classification and assessment rolls were confirmed were had in November and December of 1926 and the Mansfields were given due notice thereof. Henry Mansfield appeared before the commissioners and examined the proposed classification roll, but filed no objection. No appeal was taken to review the action of the commissioners, as provided by statute. Cahill's Rev. St. 1931, c. 42, pars. 144, 145, 148. The statute having by appeal provided an adequate remedy in case of an erroneous assessment that remedy must be held to be exclusive, and parties who have neglected to pursue it must be conclusively presumed to be content with the assessment. Wabash Eastern Railway Co. v. Drainage Com'rs, 134 Ill. 384, 25 N. E. 781,10 L. R. A. 285;Illinois Central Railroad Co. v. Drainage Com'rs, 129 Ill. 417, 21 N. E. 925;People v. Bradshaw, 303 Ill. 558, 136 N. E. 466.

John and Brasher Mansfield now insist, nevertheless, that they have a right to raise in the present proceeding the question of benefits to the Mansfield lands. Their contention is that the Farm Drainage Act makes no provision for appointment by drainage commissioners of guardians ad litem; that consequently they had no means of appearing legally before the commissioners to make objections with reference to the classification and assessment of their lands; that without the right to legally appear and make objections before the commissioners they had no basis for an appeal to the county court; that they were entitled to their day in court; that their first opportunity to object came in the present proceeding, and that under the rule announced in People v. Allen, 317 Ill. 92, 147 N. E. 479, and People v. Prather, 322 Ill. 280, 153 N. E. 382, their present objection is duly made and must be given consideration. We cannot accede to this contention. In People v. Cooper, 139 Ill. 461, 29 N. E. 872, 881, one of the issues presented related to the annexation of lands of minors to an existing drainage district. In dealing with this issue we said: ‘The point is also made that several of the owners of land in the areas sought to be annexed to said district were minors, and that no guardians ad litem were appointed for them, and that they were not represented by their guardians in the annexation proceedings. The statute makes no provision for the appointment of guardians ad litem in proceedings of this character, and gives the commissioners no authority to appoint such guardians. In proceedings for the original organization of special drainage districts, which must be had before the county court, provision is made for the appointment of guardians ad litem for infant land-owners, but those provisions do not extend to proceedings for the annexation of new areas to districts already formed. The jurisdiction of the commissioners over the lands of infants in those proceedings is acquired by giving notice in the mode prescribed by the statute, and, while infants thus notified may doubtless appear by their guardians and contest the proceedings, their appearance in that made is not made necessary to the regularity or legality of the order for the enlargement of the boundaries of the district.’ While the action taken in the case at bar was not the annexation of the minors' lands to an existing district, but the classification and assessment of lands already in the district, we see no real basis for a distinction between the two situations, and the view taken and expressed in the Cooper Case is decisive here. The minors' father, their natural guardian, who had a life estate in the lands, appeared when the proceedings were had, and John and Brasher are not now in a position to object to what was done.

Appellants insist that Walgreen Co. v. Industrial Comm., 323 Ill. 194, 153 N. E. 831, 48 A. L. R. 1199;Maskaliunas v. Chicago & Western Indiana Railroad Co., 318 Ill. 142, 149 N. E. 23, and McDonald v. City of Spring Valley, 285 Ill. 52, 120 N. E. 476, 2 A. L. R. 1359, are conclusive in their favor on the point of the right of John and Brasher Mansfield to raise in the case at bar objections to the action of the drainage commissioners. Those cases involved statutes general in their terms which in effect imposed limitations upon the right to recover for personal injuries, and it was held that certain minors and incompetents were not subject to such limitations. In the present case we are not dealing with a statute which purports to impose limitations.

It is next contended that the interests of John and Brasher Mansfield as contingent remaindermen cannot be sold in this proceeding. This contention is without merit. The lien created under section 72 of the act is not upon any specific interest in the land, but upon the land itself, that is, upon the res. The power to levy the assessment made is clearly referable to the taxing power, and the lien given is of the same nature and subject to the same general rules as that given in case of general taxes. It attaches to the land itself, irrespective of the interests of the various owners, and is paramount to all other...