Mack v. Polecat Drainage Dist.

• Decision Date: 23 June 1905
• Citation: 216 Ill. 56,74 N.E. 691
• Parties: MACK et al. v. POLECAT DRAINAGE DIST.
• Court: Illinois Supreme Court

216 Ill. 56

74 N.E. 691

MACK et al.

v.POLECAT DRAINAGE DIST.

Supreme Court of Illinois.

June 23, 1905.

Error to Coles County Court; T. N. Cofer, Judge.

Proceedings by the Polecat drainage district for the confirmation of a benefit assessment, in which William H. Mack and others filed objections. From a judgment overruling the objections, objectors bring error. Reversed.H. A. Neal, J. E. Dyas, R. G. Hammond, and F. K. Dunn, for plaintiffs in error.

A. C. Anderson and Edward C. & James W. Craig, Jr., for defendant in error.

On January 8, 1903, a petition was filed in the county court of Coles county for the organization of the Polecat drainage district. The petition was set for hearing February 5, 1903, and the notices were given as required by law. On the date of the hearing, five of the signers of the petition filed their written statement withdrawing their signatures from the petition, retracting the prayer thereof, and certifying that they were no longer willing to have their names appear thereon. The court refused to recognize their withdrawal, and entered an order finding that the petition contained the signatures of a majority of the owners of land within the proposed district who were of lawful age, and who represented more than one-third in area of the lands proposed to be included in the district, appointed commissioners, and established the boundaries of the district. On April 16, 1903, the commissioners presented their preliminary report, which was confirmed by the court, and the order of confirmation recites that the work proposed would be useful for agricultural and sanitary purposes; that the persons having signed the petition were of lawful age, and a majority of the landowners who represented one-third in area of the land to be affected by the proposed work, exclusive of infant owners-and authorized the commissioners to make an assessment of benefits, or damages and benefits, in lieu of a jury, and that all proceedings required of a jury be observed by the commissioners. The commissioners filed an assessment roll, in which the property of the plaintiffs in error was assessed, in separate tracts, various amounts for benefits, and later an amended assessment roll was filed, which recited that the commissioners had amended the original assessment roll by showing thereon the amount of damages allowed to the respective landowners in eminent domain proceedings instituted by the commissioners for the purpose of assessing such damages, and that this assessment as made by the jury had been adopted. The record of the eminent domain proceedings was attached to the assessment roll and made a part thereof. Objections were filed to the confirmation of the roll on the grounds that there was no such district as the Polecat drainage district; that there never was filed a petition signed by a majority of the adult landowners within the proposed district; that the record failed to show the filing of any such petition, or any jurisdiction in the court to appoint commissioners; that the commissioners could not assess benefits and damages until the value of the land taken was ascertained by a jury as provided by law. The court overruled the objections and confirmed the roll, and a writ of error has been prosecuted to reverse that judgment.

WILKIN, J. (after stating the facts).

The first error assigned is the refusal of the court to permit the five petitioners to withdraw their names. This district was organized under the act of May 29, 1879 (Laws 1879, p. 120), as found in chapter 42 of Hurd's Revised Statutes of 1897. Upon the filing of the petition the clerk of the county court is required, under section 3, to give notice to the parties interested as to when and in what court the petition was filed; the starting point, route, termini, and general description of the proposed work; the boundaries and name of the proposed district; and at what term of court the petition will be heard. Section 5 providesthat, on the day set for the hearing, all parties who may be damaged or benefited may appear and contest the interest or utility of the proposed work, or any part thereof, and it shall be the duty of the court to hear and determine whether or not the petition contains the signatures of a majority of the owners of the land within the proposed district who are of lawful age, and who represent one-third in area of the lands proposed to be affected by the work. In case the court shall find in favor of the petition, and that the requirements of the statute have been complied with, it shall appoint three competent persons as commissioners; but, in case the court shall find against the petition, it shall be dismissed.

The case of Littell v. Board of Supervisors of Vermilion County, 198 Ill. 205, 65 N. E. 78, on this point, is quite similar to the one at bar. A petition was filed on March 11, 1901, with the county board of Vermilion county, signed by 227 legal voters, for the organization of a new township. At its March meeting the board ordered the notices to be posted and published as required by the statute, and fixed the June session as the time for final hearing. On June 10, 1901, 77 of the voters who had signed the original petition asked that their names be stricken therefrom. On June 12, 1901, 50 of the 77 voters repudiated their action, and asked that their names remain on the original petition. At the September session of the county board the prayer of the petition was denied. A writ of mandamus was sought, and the question for consideration was as to the right of these petitioners to withdraw their names. On page 208 of 198 Ill.,page 79 of 65 N. E., we said: ‘Our examination of the decisions cited by counsel of either side from other courts on analogous statutes has led us to the conclusion that the act of signing such petitions is not an irrevocable act, and that it may be revoked at any time before the jurisdiction of the body authorized to act has been determined by it.’ On page 209 of 198 Ill.,page 80 of 65 N. E., we further said: ‘In this case the board of supervisors did not determine the sufficiency of the petition and the requisite notice until June 10, 1901. According to the allegations of the answer, which are admitted by the demurrer, prior to that determination the twenty-seven petitioners withdrew their names from the petition. No final action was taken by the board until the following September, at which time, under the foregoing authorities, a...