Drummer Creek Drainage Dist. v. Roth

• Court: Supreme Court of Illinois
• Writing for the Court: CARTER
• Citation: 91 N.E. 63,244 Ill. 68
• Parties: DRUMMER CREEK DRAINAGE DIST. et al. v. ROTH et al.
• Decision Date: 16 February 1910

244 Ill. 68
91 N.E. 63

DRUMMER CREEK DRAINAGE DIST. et al.
v.
ROTH et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Error to Ford County Court; H. H. Kerr, Judge.

Proceedings by the Drummer Creek Drainage District and others against D. K. Roth and others. Decree establishing the district, and defendants bring error. Reversed and remanded.

[244 Ill. 69]A. L. Phillips and Cloud & Thompson, for plaintiffs in error.

Ray & Dobbins and L. A. Cranston, for defendants in error.

CARTER, J.

This was a proceeding in the county court of Ford county for the organization of a drainage district under the socalled ‘Levee Act.’ The petition was directed to the December term, 1907, of said court. The proposed district included most, if not all, of the property in Gibson City and certain farm property lying southerly and westerly from said city. Under section 2 of said

[91 N.E. 64]

act (Hurd's Rev. St. 1908, p. 817, c. 42) the petition must be signed by a majority of the owners of lands within the proposed district who have arrived at lawful age, and who represent one-third in area of the land, or by one-third of the owners of lawful age who represent a major portion of the land in area. It was intended by this petition to secure one-third of the owners and a majority of the area. After the original petition had been filed, an amended petition was filed by leave of court, which added to the proposed district certain[244 Ill. 70]land not included, and left out other land included in said original petition. The original petition was signed by certain of the property owners, but the amended petition does not appear to have been signed, either by counsel or by any property owners. After the amended petition was filed a hearing was had in the county court on the organization of the district, and an order entered establishing the district.

The first contention of plaintiffs in error is that the district was not legally organized, in that the court had no authority to allow an amended petition to be filed without having such amended petition signed by as large a number of landowners, representing as great an amount of land, as is required for an original petition. It is insisted by defendants in error that the questions raised on this record must be decided in accordance with the amendments to the levee act approved and in force as an emergency law on May 29, 1909. Laws 1909, p. 182.

Two of the plaintiffs in error here prayed an appeal from the order organizing the district to this court. That case was decided at the April term, 1909, of this court, and the appeal was dismissed as having been prematurely taken, under the statute then in force. Damon v. Barker, 239 Ill. 637, 88 N. E. 278. That decision held that the order organizing the district, under the then existing statute, was interlocutory and not final. Shortly thereafter the amendment heretofore referred to went into force. Section 16 of the amended act provides, among other things, that the order organizing the district ‘shall be final, and separate or joint appeals and writs of error may be taken to the Supreme Court by the parties affected thereby,’ etc. The writ of error in this case was sued out of this court after this amendment went into force. We are disposed to hold that the amendment so far as it affected the procedure by appeal or writ of error, superseded the old law where the appeal had not been perfected or the writ of error sued out previous to the [244 Ill. 71]time the said amendment went into effect. Chicago & Western Indiana Railroad Co. v. Guthrie, 192 Ill. 579, 61 N. E. 658, and cases there cited. This being so, it is argued by counsel for defendants in error that said section 16, as amended, makes the organization order final, and this writ of error brings up only one final order in these proceedings, and that the last one entered herein, and not the order organizing the district.

It appears that since the appeal from the organization of the district was heard by this court in Damon v. Barker, supra, and dismissed, the commissioners, acting for the drainage district, filed their petition under the eminent domain law, and condemned a strip of land across the lands of a number of the plaintiffs in error for the main ditch of the district, and afterwards filed an assessment roll and corrected assessment roll against the tracts of land through which the main ditch was to pass, and that an order was entered confirming the said assessment roll as to all the property assessed. It further appears that this writ of error has brought up the record, not only of the special assessment and condemnation proceedings, but the judgment order and proceedings as to the...