Huston v. Clark

• Decision Date: 27 September 1884
• Citation: 1884 WL 10014,112 Ill. 344
• Parties: PAUL HUSTON et al.v.CHARLES W. CLARK et al.
• Court: Illinois Supreme Court

112 Ill. 344

1884 WL 10014 (Ill.)

PAUL HUSTON et al.

v.CHARLES W. CLARK et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 27, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the County Court of Edgar county; the Hon. ANDREW J. TROGDEN, Judge, presiding.

This was a proceeding commenced in the county court of Edgar county, under section 2 of the Drainage act of May 29, 1879, known as the “Levee act,” for the formation of a drainage district, and the assessment of benefits upon the lands embraced therein, above damages. The petition, signed by a majority of the adult land owners having more than one-third of the lands in the proposed district, was filed in the county court on February 18, 1882, and properly described the lands sought to be incorporated into the proposed district, and was verified by affidavit. On the hearing, the petition was dismissed as to the lands of one of the original defendants, and three commissioners were appointed by the court, and the district was, by an order of court, established, by the name of the “Sims Special Drainage District.” The commissioners, by their report, found the probable cost of constructing the necessary drains, and annual cost of keeping the same in repair, and certain other facts, as required by the act. They also found that the benefits would greatly exceed the cost of constructing the work, and that there would be no lands injured, but all would be benefited, and also found that other lands not named in the petition would be benefited by the proposed work, which were described, and included by the commissioners in the proposed district. On March 12, 1883, an order was made confirming the report of the commissioners, and establishing the district, and ordering that a jury be summoned to assess benefits and damages. On March 30, 1883, the report of the jury was filed assessing benefits upon the lands in the district. No damages were reported in the column set apart for that purpose. After exception to the report, the jury, on April 24, 1883, made and returned to the commissioners a new assessment roll, which was returned by them to the county court. In this roll the lands of Almira Poor and Edmund Sheehey were described as being in township 14, north, range 12, west, instead of “14, north, range 13, west.” On June 12, 1883, the court granted leave to the foreman of the jury to amend the assessment roll, so as to correct the mistake in the description of the lands of these parties, which was done.

The court overruled exceptions taken to the report of the jury, and confirmed the same as amended, and ordered that such assessment be paid,--twenty-five per cent thereof on September 1, 1883, fifty per cent January 1, 1884, and twenty-five per cent April 1, 1884. No question was made as to the regularity or sufficiency of the notices of the various meetings. The errors assigned are--

First--The act of the legislature is unconstitutional and void, and therefore the court erred in proceeding under it.

Second--The petition was insufficient to give the court jurisdiction, in failing to give a “general description of the lands embraced in the proposed district, with the names of the owners, when known.”

Third--The court erred in making the order establishing the district, the commissioners' report failing to show what lands would be damaged.

Fourth--The court erred in ordering a jury, and having them assess benefits.

Fifth--The court erred in allowing the foreman of the jury to amend the assessment roll.

Sixth--The court erred in overruling the objections to the assessment roll, and in confirming the same.

Seventh--The court erred in not dismissing the whole proceeding in each and every stage thereof.

Mr. HENRY TANNER, and Mr. JAMES A. EADS, for the plaintiffs in error.

Messrs. SELLAR & DOLE, for the defendants in error. Mr. JUSTICE DICKEY delivered the opinion of the Court:

The principal objection urged against the validity of the proceeding and the judgment of the county court is, that the act of May 29, 1879, under which they were had, is unconstitutional and void, as an attempt to confer upon the judicial department the power of taxation. It is claimed that the district organized was the act of the county court, and not that of the people residing therein, and it is urged that the commissioners, who are called the “corporate authorities” of the district, were not elected by the people of the district, nor appointed in any mode to which they had given their assent, and that the assessment of benefits is not by the act required to be made by the “corporate authorities” of the district, but by a jury selected by the county court. We do not think the act is liable to the objection that it attempts to invest the county court with the power of taxation for the district when formed. The act does not attempt to confer any such power. By section 31, article 4, of the constitution, adopted at the November election, 1878, the General Assembly may “““provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct, * * * by special assessment upon property benefited thereby.” In this there is no limitation upon the legislature as to the mode of forming such districts, or as to the agencies or instrumentalities to be used in their creation. As said in Blake v. The People, 109 Ill. 504: “Surely there can be no reason why the county court may not be invested with power to inquire into and find the existence of certain preliminary facts deemed important, as prerequisites to the corporation. This is not unusual, but in all like cases, where the facts deemed necessary to be found are of a nature that the General Assembly can not conveniently investigate them, the practice has been to refer their determination to some local tribunal.” An express grant of power to do a certain thing, without any words of limitation or restriction, carries with it all necessary and proper means to make the power effectual, and the body to whom such power is given is in such case the sole judge of the means to be employed to give it practical effect, especially where that body, except so far as limited and restricted, has plenary power. The fact that the county court is...