Marshall v. Comm'rs of Upper Cache Drainage Dist.

• Decision Date: 17 June 1924
• Docket Number: No. 15912.,15912.
• Citation: 313 Ill. 11,144 N.E. 321
• Parties: MARSHALL et al. v. COMMISSIONERS OF UPPER CACHE DRAINAGE DIST.
• Court: Illinois Supreme Court

313 Ill. 11

144 N.E. 321

MARSHALL et al.

v.COMMISSIONERS OF UPPER CACHE DRAINAGE DIST.

No. 15912.

Supreme Court of Illinois.

June 17, 1924.

Petition by Charles Marshall and others against the Commissioners of the Upper Cache Drainage district, for the dissolution of the drainage district. Judgment for plaintiffs, and defendants appeal.

Affirmed.Appeal from Johnson County Court; John O. Cowan, Judge.

Charles J. Huffman, of Vienna, and Creighton & Thomas, of Fairfield, for appellants.

Craig & Craig, of Mattoon, P. J. Kolb, of Mt. Carmel, H. A. Spann and O. R. Morgan, both of Vienna, and S. Bartlett Kerr, of Metropolis (Homer T. Dick and J. A. Connell, both of Chicago, of counsel), for appellees.

THOMPSON, J.

The Upper Cache drainage district, comprising several thousand acres of land in Johnson and Union counties, was organized in 1921 in the county court of Johnson county under the provisions of the Levee Act (Smith-Hurd Rev. St. 1923, c. 42). The estimated cost of the proposed improvement was $250,000. At a cost of about $12,000 the commissioners caused the lands to be surveyed, had an estimate of cost made, and prepared and filed the assessment roll. August 30, 1923, 155 landowners of the district filed a petition in the county court, praying that the whole system of proposed works be abandoned and the district abolished. An answer was filed by the commissioners admitting all the jurisdictional facts, and asking that the court refuse to grant the prayer of the petition, except upon condition that all costs, charges, and expenses, including fees of the attorneys, engineers and commissioners, be paid within 30 days from the entry of the order of dissolution. The request of the commissioners was based upon the 1923 amendment to section 44. The court held this amendment unconstitutional, and entered its order granting the prayer of the petition on condition that the court costs be paid by the petitioners within 30 days. The costs were paid within the time required, and the judgment of dissolution became final. The commissioners prosecute this appeal to review that judgment.

[1]The amendment on which appellants rely for relief reads as follows:

‘And at any time before the contract for the construction of the proposed works shall have been made, upon presentation to the county court of a petition signed by a majority in number of all the landowners of such district, and owning more than one-half in area of the lands in the district to which the petitioners belong, praying that the whole system of proposed works may be abandoned and the district abolished, the court shall enter upon its record an order granting the prayer of such petition, upon condition that an assessment be levied by the court against all the lands of the district with which funds the commissioners under order of the court shall pay charges and expenses incurred in the matter of organization of such district up to the time of entering of such order by the court, as the court shall deem just and equitable including court costs, within thirty (30) days from the rendition of such order. If such petitioners fail to comply with such order, it shall be considered after the expiration of said thirty (30) days as of no force and effect whatever. If the district be abolished under this section, assessments that shall have been collected shall be refunded to the persons who have paid the same, or their lawful representatives.’ Laws 1923, p. 330.

When this district was organized, section 44 provided that the county court enter its order granting the prayer of the petition for abolishing the district, ‘upon condition that the petitioner pay all court costs within thirty (30) days from the rendition of such order.’ Laws 1919, p. 441. In lieu of the words quoted, there were inserted by the amendment of 1923 the words italicized in the preceding paragraph. The author of the amendment has lifted 4 words out of the statute and into their place has dropped 59 words, and the result is an ambiguous, if not meaningless, and unworkable statute. The act of 1919 clearly provided that the order granting the prayer of the petition should be entered upon condition that the petitioners pay the court costs within 30 days from the rendition of the order. The amendment of 1923 provides that the county court shall levy an assessment against all the lands in the district, and that the commissioners shall pay all charges and expenses incurred in the matter of the organization of the district from the fund thus created. Whether the assessment shall be levied within 30 days, or the landowners shall pay the assessment within 30 days, or the commissioners shall pay all the charges and expenses within 30 days, is not made clear. If the court had power to make the assessment against the lands of the district it does not have the power to enforce the payment of the assessment within 30 days. If the assessments were not paid within 30 days, the commissioners would have no fund from which to pay the charges and expenses. The statute further provides that if the petitioners fail to comply with the order it shall be void. What does this language mean? There is no order requiring the petitioners to act. This provision was retained as it existed in the 1919 amendment, and when read in connection with the words added by the 1923 amendment it is meaningless. Suppose all the landowners in the district except one pay their assessments; is the order nullified because of the...