Keigwin v. Drainage Com'rs

• Citation: 5 N.E. 575,115 Ill. 347
• Parties: KEIGWIN and others v. DRAINAGE COM'RS and others.
• Decision Date: 14 November 1885
• Court: Supreme Court of Illinois

115 Ill. 347

5 N.E. 575

KEIGWIN and others

v.DRAINAGE COM'RS and others.

Supreme Court of Illinois.

Filed November 14, 1885.

W. W. Rathbun petitioned for rehearing and reversal upon the following grounds:

The drainage commissioners had not jurisdiction to levy an assessment. Without a sufficient petition for organization, persons can acquire no authority to act as drainage commissioners. Sharp v. Speir, 4 Hill, 88;Dean v. City of Madison, 9 Wis. 402. The petition must comply with all requisites of the statute (Sess. Laws Ill. 1879, p. 120, § 2; Id. 143, § 3) to confer authority to act. Young v. Stearns, 91 Ill. 222. The bill alleges various jurisdictional insufficiencies in the petition, which are admitted upon the record. Gross fraud and intentional wrong on the part of the commissioners were also charged by the bill and admitted upon the record.

Such districts are not corporations, nor quasi corporations, nor de facto corporations. The power is vested in the commissioners as corporations; and officials constituting a corporation are controllable by injunction. People v. Whitcomb, 55 Ill. 172.

The validity of the organization of the district may be inquired into by bill. People v. Whitcomb, 55 Ill. 172;Holden v. People, 90 Ill. 434;Cumberland Co. v. Webster, 53 Ill. 141;Commissioners of Highways v. Durham, 43 Ill. 86;Green v. Green, 34 Ill. 320.

Injunction is the proper remedy, and not quo warranto or certiorari. Story, Eq. Jur. §§ 64 k, 700, 928; People v. Whitcomb, 55 Ill. 172.

An appeal from the action of the commissioners would have been ineffectual. Labadie v. Hewitt, 85 Ill. 341.

The petition was denied.

MULKEY, J.

The appellants, Horace H. Keigwin and others, filed a bill in the circuit court of Lee county against the drainage commissioners of Hamilton township, in said county, to enjoin the collection of an assessment levied against the lands of appellants lying in Union Drainage District No. 1, in said township, for drainage purposes. A temporary injunction having been awarded in the case, the court, on motion of appellees, dissolved the same, and entered an order dismissing the bill for want of equity, which, on appeal, was affirmed by the appellate court for the Second district. The present appeal is from the judgment of affirmance in the appellate court.

The question for determination is whether the case made by the bill is one of equitable cognizance. If, admitting all the facts stated in the bill, though inartificially charged, the complainants were not, as matter of law, entitled to equitable relief, then there was no error in dismissing the bill. It will only be necessary to advert to a few of the most important averments in the bill for the purpose of presenting the view we have taken of the case. The bill, among other things, shows that the complainants are land-owners and tax-payers in said Union District No. 1; that in February, 1883, a petition was filed in the office of the town clerk of said township, praying for an organization of a drainage district, specifying the boundaries thereof; that the petition was insufficient in law, and uncertain, etc.; that it failed to designate any name, and did not, with sufficient certainty, set out the object and purposes of the district proposed to be organized; that sufficient notice of the filing of the petition was not given by the clerk; that the drainage commissioners pretend that they organized a drainage district on thirty-first March, 1883, by name of ‘Union District No. 1;’ that such pretended organization did not include all lands described in the petition, and included others not mentioned in it; that the commissioners made no estimate of the costs and expenses of the work proposed to be done, and that no evidence was heard by them on that question; that the costs and expenses will exceed the benefits of the proposed drainage; that the assessment is uncertain and insufficient; that the amount is excessive and unreasonable; that insufficient notice was given of the meeting for the consideration of objections to the assessment; that the character and capacity of the work originally proposed to be done has since been changed; that the petitioners whose names appear to the petition were not a majority of the adult land-owners in the district, etc.

The foregoing are among the most important charges in the bill, and such as we have not enumearted are of the same general character as those mentioned. Conceding all the irregularities and defects in the organization and proceedings of the district complained of, the fact neverthless is apparent, on the face of the bill itself, that it was organized and assumed the functions of a corporate body, and its right to do so, it is conceded, cannot be questioned in this proceeding. Notwithstanding this concession on the part of appellant's counsel, it is manifest that many of the averments in the bill directly assail the legality of the organization of the district as a corporate body, and if not made for this purpose, it is not perceived what object there could have been in making them. Be this as it may, since it is clear a court of chancery has no power or jurisdiction to entertain a bill for the purpose of determining whether a corporation de facto was legally organized, it follows that the averments in question are to be disregarded as redundant matter or mere surplusage.

Those averments being eliminatedfrom the bill, nothing remains to be considered but such as are supposed to affect the validity of the assessment. It is clear from the charges in the bill relating to...