Michael Brien v. John Wheelock

• Decision Date: 24 February 1902
• Docket Number: No. 38,38
• Citation: 22 S.Ct. 354,46 L.Ed. 636,184 U.S. 450
• Parties: MICHAEL W. O'BRIEN et al. , Exrs., Petitioners , v. JOHN G. WHEELOCK et al
• Court: U.S. Supreme Court

184 U.S. 450

22 S.Ct. 354

46 L.Ed. 636

MICHAEL W. O'BRIEN et al., Exrs., Petitioners,

v JOHN G. WHEELOCK et al.

No. 38.

Argued October 21, 22, 1901.

Decided February 24, 1902.

This case is brought here by certiorari to the circuit court of appeals for the seventh circuit to review a decree of the circuit court of the United States for the southern district of Illinois, 78 Fed. 673, affirmed by the court of appeals, 37 C. C. A. 309, 95 Fed. 883. The bill relates to certain proceedings under an act of the general assembly of the state of Illinois, approved April 24, 1871, entitled 'An Act to Provide for the Construction and Protection of Drains, Ditches, Levees, and Other Works.' The opinion of the circuit court of appeals was delivered by Mr. Justice Harlan, presiding as circuit justice, and the case is therein stated thus:

'By the above act of the general assembly of Illinois, it was provided that whenever one or more owners or occupants of lands desired to construct 'a drain or drains, ditch or ditches, across the lands of others, for agricultural and sanitary purposes, such person or persons may file a petition in the county court of the county in which the drain or drains, ditch or ditches, shall be proposed to be constructed, setting forth the necessity of the same, with a description of its or their proposed starting point, route, and terminus, and if it shall be deemed necessary for the drainage of the land of such petitioners that a levee or other work be constructed, the petitioners shall so state, and set forth a general description of the same as proposed, and may pray for the appointment of commissioners for the construction of such work, pursuant to the provisions of this chapter.' § 1.

'The act required notice by publication to be given of any petition filed under its provisions, and that: 'Such notice shall state when and in what court the petition is filed, the starting point, route, and terminus of the proposed drain or drains, ditch or ditches, or levees, and, if a levee or other work is intended to be constructed in connection therewith, shall so state, and at what term of court the petitioners will ask a hearing upon such petition.' § 2.

'If the drain or drains, ditch or ditches, levee or other work proposed to be constructed, was to pass through or over, or be constructed upon, lands lying in different counties, the petition could be filed in the county court of either county. § 4.

'The court in which the petition was filed was empowered to determine all matters pertaining to the subject-matter of the petition.

'If it appeared that the proposed drain or drains, ditch or ditches, levee or other work, was necessary or would be useful for the drainage of the lands for agricultural and sanitary purposes, the court was required to so find, and appoint three competent persons as commissioners to lay out and construct such proposed work. § 5.

'It was made the duty of the commissioners to examine the lands proposed to be drained, and those over or upon which the work was proposed to be constructed, and determine: '(1) Whether the starting point, route, and terminus of the proposed drain or drains, ditch or ditches, and if a levee or other work is proposed, the proposed location thereof, is or are in all respects proper or most feasible, and if not, what is or are so; (2) The probable cost of the proposed work, including all incidental expenses, and the expenses of the proceeding therefor; (3) What lands will be injured thereby, and the probable aggregate amount of all damages such lands will sustain by reason of the laying out and construction of the proposed work; (4) What lands will be benefited by the construction of the proposed work, and whether the aggregate amount of benefits will equal or exceed the costs of constructing such work, including all incidental expenses and costs of the proceeding.' § 9.

'If the commissioners found and reported that the expense would more than equal the benefits, the proceedings were to be dismissed; if less, then they were to have plans, profiles, surveys, and specifications made, and report the same to the court. §§ 10, 11.

'The commissioners were not confined to the point of commencement, route, or terminus of the drains or ditches, or to the number, extent, or size of the same, or the location, plan, or extent of any levee or other work, as indicated in the petition. But they were directed to locate, design, lay out, and plan the same as they thought would drain the petitioners' land with the least drainage, and for the greatest benefit of all the lands to be affected thereby. All plans proposed by the commissioners could be changed by the court on the application by them or by any person interested. § 12.

'The act required due notice by publication to be given of any application to confirm the report, and the privilege was given to all presons interested to appear and contest its confirmation or to ask any modification thereof. If no objections were made to the report, or if the objections made to it were not well taken, it was to be confirmed. If the court was of opinion that the report should be modified, it was given authority to make such modification as would be equitable. §§ 13, 14.

'If the report was confirmed, then the court was authorized to impanel a jury of twelve men competent to serve as jurors, who, being duly sworn, were required to assess damages and benefits according to law; or the court could direct that a jury be impaneled before a justice of the peace for the assessment of damages and benefits, in which case the commissioners could apply to any justice of the peace in the county, who should immediately, without the formality of any written application, proceed to summon and impanel a jury of six men competent to serve as jorors, who should be sworn in the same manner as was provided in case of a jury impaneled by the court in which the proceeding is pending, the justice to enter upon his docket a minute of such proceeding before him, and the names of the jurors. § 16.

'The duty of the jury was to examine the land to be affected by the proposed work; ascertain to the best of their ability and judgment the damages and benefits sustained by or accruing to the land affected by the construction of the proposed work; make out an assesment roll, in which should be set down in proper columns the names of owners, when known, a description of the premises affected, in words or figures, or both, as was most convenient, the number of acres in each tract, and, if damages were allowed, the amount of the same; and in case damages were allowed to, and benefits assessed against, the same tract of land, the balance, if any, should be carried forward to a separate column for damages or benefits, as the case might be. § 17.

'In making the assessment the jury were required to award and assess damages and benefits in favor of and against each tract of land separately, in the proportion in which such tract of land would be damaged or benefited; and in no case should any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work and expenses of the proceeding, nor in a greater amount than it would be benefited by the proposed work, according to the best judgment of the jury. § 18.

'The commissioners, or any person who made objection to the assessment, were given the right of appeal from the finding of the jury. If, upon such appeal, there were corrections of the assessment, or if the assessment roll was confirmed, then the roll was to be spread upon the record, with right of appeal or writ of error therefrom. §§ 24, 26.

'At the time of confirming the assessment the court could order the assessment of benefits to be paid in instalments of such amounts and at such times as would be convenient for the accomplishment of the proposed work; otherwise, the whole amount should be payable immediately, upon the confirmation, and should be 'a lien upon the lands assessed until paid.' § 27.

'It was made the duty of the clerk, immediately after the entry of the order of confirmation, to make out and certify to the commissioners a copy of the assessment roll, and also to make out and deliver to the commissioners separate copies of the same, pertaining to the lands situated in different counties, to be recorded in the recorder's office of the respective counties in which the lands were situated, and which should be notice of the lien thereon to all person. § 28.

'Upon receiving a certified copy of such assessment, the commissioners could proceed to collect the same, or any instalment thereof, or certify the assessment of any instalment thereof which they might be entitled to collect at the time to the county clerk of the county in which the lands assessed were situated, who was required to 'extend the same, in a separate column, upon the proper tax books for the collection of state and county taxes: Provided, the owner, agent, or occupant of any land through or on which any drain, ditch, or levee shall be constructed shall have the right, under the direction of said commissioners, within such time as they shall prescribe, to construct such drain, ditch, or levee, or any part thereof, at his own cost; and in case he shall so construct the same, he shall be allowed for the value thereof upon his assessment.' § 29.

'In case the assessment for benefits should be payable in instalments, such instalments were to draw interest at the rate of 10 per cent per annum from the time they became payable till they were paid, and the interest could be collected and enforced as part of the assessment. § 30.

'Other sections of the act are as follows:

"§ 31. When the commissioners shall have elected to collect any assessment or instalment thereof themselves, or shall not have caused the same to be extended upon the state and county tax books, and any assessment or instalment shall be due and uncollected,...