Drainage Com'rs v. Giffin

• Decision Date: 01 November 1890
• Citation: 134 Ill. 330,25 N.E. 995
• Parties: DRAINAGE COM'RS v. GIFFIN et al.
• Court: Illinois Supreme Court

134 Ill. 330

25 N.E. 995

DRAINAGE COM'RS

v.GIFFIN et al.¹

Supreme Court of Illinois.

Nov. 1, 1890.

Appeal from appellate court, third district.

Wallace & Prettyman, for appellants.

J. H. Sedgwick and George Rider, for appellees.

BAILEY, J.

This was a common-law writ of certiorari, brought to review certain proceedings of the commissioners of the Mason and Taxewell special drainage district. Said district was organizedin the year 1882, under the provisions of the act entitled ‘An act to provide for the organization of drainage districts, and to provide for the construction, maintenance, and repair of drains and ditches by special assessment on the property benefited thereby,’ approved May 29, 1879, and originally embraced 42,000 acres of land situate in several townships, in the counties of Tazewell and Mason. After said district had been organized, and had constructed its main and lateral ditches and smaller drains, and had levied, and in part collected, several assessments upon the lands of the district for the construction thereof, and had also incurred a heavy indebtedness for which it had issued its bonds, it was claimed that other lands adjoining the district at various points were actually involved in the same system of drainage, and that the owners of such lands depended upon, and were, to some extent, availing themselves of the ditches and drains thus constructed. A petition was thereupon prepared and signed by certain of the adult owners of lands in the district, praying for an enlargement of the boundaries of the district by annexing thereto the several adjacent tracts of land situated as above described. Said petition was presented to the commissioners of the district on the 10th day of January, 1887, and the proceedings thereunder were had or attempted to be had in pursuance of the provisions of section 42, of the act of June 27, 1885, entitled ‘An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,’ said last-named act being an amendatory revision and consolidation of the act under which said district was organized, and the several acts amendatory thereof. Laws 1885, p. 77. Said proceedings resulted in an order by said commissioners enlarging the boundaries of said district in accordance with the prayer of the petition. Various of the owners of the land thus annexed presented to the circuit court of Tazewell county their petition for a certiorari, alleging, among other things, that the proceedings by which the boundaries of said district had been enlarged were irregular, and without jurisdiction or lawful authority on the part of said commissioners, and praying that the record of said proceedings be brought before said court, and that said order of annexation to or extension of the boundaries of said special drainage district, and the entry thereof in the records of said district, be reversed, set aside, and annulled. On said petition a writ of certiorari was duly issued and served, and thereupon said commissioners made return to said writ by certifying to said court the record of said proceedings. On inspection of said record, the court entered judgment quashing the same, and ordering that it be forever held for naught. Said judgment was affirmed by the appellate court, (28 Ill. App. 561,) and an appeal has now been taken to this court.

It is urged by the appellants that the circuit court of Tazewell county had no jurisdiction. It is clear that no question as to its jurisdiction of the persons of the appellants can now be raised. Even if there had been no sufficient service of process, their appearance without objection was a waiver of all defects of jurisdiction over their persons, and it was too late to raise the objection for the first time, as it was raised in this case, on motion in arrest of judgment. But it is insisted that said court had no jurisdiction of the subject-matter of the writ, such contention being based upon the fact that said drainage district, though comprising territory in both Tazewell and Mason counties, was organized by the county court of Mason county, and kept its principal office and its records in that county. On this point counsel cite and seem to rely upon the provisions of the second section of the practice act, (Rev. St. c. 110,) which makes it unlawful for any plaintiff in a transitory action to sue any defendant out of the county where the latter resides or may be found. In view of the provisions of that section it seems to be immaterial whether said drainage district is deemed to be a resident of Mason county or not, since the statute, as has frequently been held in this court, gives the defendant a privilege merely of being sued in the county where he resides or may be found, and that, to avail himself of such privilege, he must do so in apt time by plea to the jurisdiction, or he will be deemed to have waived it. Drake v. Drake, 83 Ill. 526;Railway Co. v. Williams, 77 Ill. 354;Wallace v. Cox, 71 Ill. 548;Humphrey v. Philips, 57 Ill. 132;Hardy v. Adams, 48 Ill. 532;Kenney v. Greer, 18 Ill. 432. The jurisdiction of said court not having been challenged in the proper time or manner, the appellants cannot now avail themselves of the provisions of said statute.

But if the suit is to be deemed to be local we see no reason why it could not be as well brought in Tazewell as in Mason county. The drainage district is a municipal or quasi municipal corporation, having within its boundaries certain defined territory, part of which is in Mason and part in Tazewell county. The corporation must be deemed to be existing and located, for all purposes of jurisdiction, in every part of its territory. The same thing may also be said of its corporate or municipal authorities, the drainage commissioners. Furthermore, the action of the commissioners in enlarging the boundaries of the district affected lands situate in Tazewell as well as lands lying in Mason county. Indeed, the greater part of the lands sought to be annexed to the district seem to be situate in Tazewell county. If, then, the action is local, either by reason of the locality of the drainage district or the location of the lands sought to be annexed, the jurisdiction may as properly be in the circuit court of Tazewell county as in the circuit court of Mason county. The fact that the county court of Mason county happened to be the instrumentality through which the original organization of the district was effected, or the fact that the custodian of its records happens to be an officer residing in Mason county, ought not to have, so far as we are able to see, any controlling influence upon the question of jurisdiction. Neither of these acts makes the drainage district, its officers and records, any the less, in legal contemplation, a municipal corporation of and having its records and officers in Tazewell county, and subject to the jurisdiction of the courts of that county.

It is strenuously urged that certiorari is not the proper remedy, the contention being that the petitioners should have resorted to an information in the nature of a quo warranto. We need not pause to determine whether quo warranto would lie or not, as we know of no rule which, in this case, would make that remedy necessarily exclusive, even if it should be held to be a proper or available remedy. The only question is whether the alleged defects in the proceedings for the enlargement of the drainage district are such as can be reached and remedied by writ of certiorari, and this question is in no way dependent upon whether a writ of quo warranto might not also lie to oust the drainage commissioners of their control over the territory annexed, or to dissolve the organization of the drainage district so far as it applies to that territory. The writ of certiorari is a well-known common-law writ, and in England the court of king's bench has always been in the practice of awarding it to inferior jurisdictions, commanding them to send up their records for inspection. By adopting the common law, we have adopted this as a recognized legal remedy, and in this state any court exercising general, commonlaw jurisdiction has, unless expressly forbidden to do so by the statute, an inherent authority to issue it. People v. Wilkinson, 13 Ill. 660;Miller v. Trustees, 88 Ill. 26; 3 Amer. & Eng. Enc. Law, tit. ‘Certiorari.’ Neither in England nor in this state is it held to be a writ of right, but it issues, in proper cases, only upon application to the court, on proper cause shown. We have repeatedly held that said writ may be awarded to all inferior tribunals and jurisdictions where it appears that they have exceeded the limits of their jurisdictions, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode is provided for reviewing their proceedings. Gerdes v. Champion, 108 Ill. 137;Doolittle v. Railroad Co., 14 Ill. 381; Railroad Co. v. Whipple, 22 Ill. 105; Railroad Co. v. Fell, Id. 333. The purpose of the writ is to have the entire record of the inferior tribunal brought before the superior court to determine whether the former had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law. The trial is solely by inspection of the record, no inquiry as to any matter not appearing by the record being permissible, and, if the want of jurisdiction or illegality appears by the record, the proper judgment is that the record be quashed. Undoubtedly, where the controversy involves the investigation of facts not appearing upon the record, certiorari is not the proper remedy. Thus, if in the present case the right to have the proceedings by which the lands in question were annexed to the drainage district set aside, and the drainage commissioners ousted of the corporate authority they now claim to exercise over said lands, depended upon facts which could be established only by evidence de...