Goudy v. Mayberry

• Decision Date: 16 February 1916
• Docket Number: No. 10322.,10322.
• Citation: 111 N.E. 526,272 Ill. 54
• Parties: GOUDY et al. v. MAYBERRY et al.
• Court: Illinois Supreme Court

272 Ill. 54

111 N.E. 526

GOUDY et al.

v.MAYBERRY et al.

No. 10322.

Supreme Court of Illinois.

Feb. 16, 1916.

Appeal from Wayne County Court; A. D. Webb, Judge.

Appeal by W. M. Goudy and others from the part of the judgment, dismissing a petition for a drainage district, which refused to allow them certain charges against E. V. Mayberry and others. Affirmed.

Thomas H. Creighton, of Fairfield, for appellants.

Richard L. Boggs and Mills & Forth, all of Fairfield (Carroll C. Boggs, of Fairfield, of counsel), for appellees.

CARTER, J.

This is an appeal from a judgment of the county court of Wayne county dismissing a petition for the organization of the Wayne City drainage district, in that county, and refusing to allow certain costs, charges, and fees in favor of appellants, W. M. Goudy, T. J. Hilliard, and J. E. Bond, who had theretofore been named by the county court as commissioners of said district.

A somewhat full history of the attempted organization and subsequent proceedings concerning said Wayne City drainage district is necessary in order to reach a correct conclusion as to the costs and charges here involved. In June, 1911, a petition signed by 77 landowners was filed in said county court praying for the organization of the Wayne City drainage district and the appointment of commissioners thereunder. A hearing was had on this petition the following month; the county court holding, over the objection of a number of the landowners and the attempted withdrawal of 23 petitioners, that the district was legally organized, and thereafter the court appointed appellants as commissioners for said district. Some 34 of the landowners involved objected to the organization of the district on the ground that it was illegal. Thereafter the commissioners employed an engineer and prepared plans for the drainage district. About two years after their appointment they made a report recommending a certain plan or scheme, which was quite different from the original one proposed. Over objections and exceptions of many landowners the court thereafter entered an order approving the report and declaring the district duly organized. Some 34 landowners then sued out a writ of error from this court to review the order of the county court declaring the district duly organized. On the hearing in this court (Wayne City Drainage District v. Boggs, 262 Ill. 338, 104 N. E. 676) the judgment was reversed and the cause remanded, on the ground that the petition was not sufficient to confer jurisdiction upon the county court; this court stating that ‘the petition must be dismissed at the cost of the petitioners.’ In June, 1915, the mandate of this court reversing the judgment was filed in the county court of Wayne county, and notice was served upon all the 77 original petitioners for the organization of such district, including the appellees herein, that appellants, Goudy, Hilliard, and Bond, who had theretofore been appointed by the court as commissioners of said district, would present their accounts for costs and expenses in the proceedings and litigation for the organization of the district in the amount of $6,370.13 and ask judgment for that amount against the petitioners. The county court refused to enter an order allowing such costs and expenses in favor of Goudy, Hilliard, and Bond, and this appeal is to test the question whether the said appellants were entitled to have said costs and expenses incurred by them in the proceeding and litigation for the organization of the district allowed against the original petitioners.

Counsel for appellees concede that the original petitioners should be taxed with the costs of the proceedings up to the time the county court entered the order, in July, 1911, declaring the petition sufficient to organize the district, but contend that none of the costs incurred thereafter by appellants can be charged against the original petitioners. The record is not clear as to just what costs were incurred before said order of July, 1911, and what have been incurred since; but it is apparent from the record, in the light of the statements in the briefs, that most, if not all, of the costs here in dispute were incurred since the entry of that order. Approximately, as we gather from the record, these costs asked by appellants are $1,071.26 for the services of an engineer in preparing plans for the district, approximately $1,875 for services and personal expenses of the three appellants, $1,200 for attorney's fees, and something over $800 for money spent for day labor of men employed to help lay out the work for the proposed district. In addition to this there were various court and other costs that are not itemized, so that we cannot find the exact amount; but enough has been stated above to indicate the nature of the greater part of the costs, charges, and expenses in dispute.

Counsel on each side argue as to the equity of allowing the costs; counsel for appellants contending that in equity and good conscience, as they were not volunteers, but were appointed by the county court to take charge of this work and in good faith incurred the expenses for engineer, laborers, attorney's fees, and their own personal expenses, those who petitioned to have the district organized should be charged with these expenses, and not these men, who were acting, under the law, as their agents. Counsel for appellees, on the other hand, contend that, assuming this question should be settled on the ground of equity and good faith, appellees should not be charged with these expenses in favor of appellants, as the latter knew, at the time of their appointment, that 23 of the original petitioners had attempted to withdraw from the petition and that the court permitted 6 to withdraw, and refused to allow the request of the other 17 because their application was made too late; that the appellants knew at that time, by an order entered of record in the county court, that a large majority of the landowners in the proposed district were opposed to the organization, and that the trial court was forcing the organization of the district against the wishes of the majority, and that appellants well knew that these landowners were going to oppose the organization of the district to the end, and should not have taken 23 months to report their plans, and should not have obligated themselves to large expense before the question of the legal organization of the district could be decided in this court; that before incurring such expense appellants should have had the legality of said district tested in the highest court. None of these arguments or suggestions of counsel can have any weight in deciding this question, except in so far as they help to give the proper construction, on this question of costs, to the various provisions of the Levee Act, under which this district was attempted to be organized.

At common law costs were unknown. Their allowance, and recovery rest entirely upon statutory provisions, and no liability for costs exists in the absence of statutory authorization. 7 R. C. L. 781; 11 Cyc. 267; 5 Ency. of Pl. & Pr. 110. Judgments for costs resting on statutes cannot be awarded, unless they have been authorized in this state by the Legislature. Dobler v. Village of Warren, 174 Ill. 92, 50 N. E. 1048;Smith v. McLaughlin, 77 Ill. 596. Under the authorities in this state, even a court of chancery has no general power to award costs, unless authorized by statute. Metropolitan Life Ins. Co. v. Kinsley, 269 Ill. 529, 109 N. E. 1011. Unless the statute clearly gives the authority to tax costs they will not be allowed, as such statutes are penal in their nature and have always been strictly construed. Gehrke v. Gehrke, 190 Ill. 166, 60 N. E. 59, and cases cited.

Section 5 of the Levee Act, among other things, provides:

‘If the court, after hearing any and all competent evidence, that may be offered before it for and against the said petition, shall find the same has not been signed as hereinbefore required, the said petition shall be dismissed at the costs of the petitioner; but if the court shall find that the petition has been signed, as heretofore provided, ...