Osborn v. People Ex Rel. Thomas A. Lewis

• Decision Date: 12 May 1882
• Parties: SANDERS A. OSBORNv.THE PEOPLE ex rel. Thomas A. Lewis, for use, etc.
• Court: Illinois Supreme Court

103 Ill. 224

1882 WL 10310 (Ill.)

SANDERS A. OSBORN

v.THE PEOPLE ex rel. Thomas A. Lewis, for use, etc.

Supreme Court of Illinois.

Filed at Springfield May 12, 1882.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Champaign county; the Hon. J. W. LANGLEY, Judge, presiding.

Mr. J. O. CUNNINGHAM, for the appellant:

There was no legal organization of a drainage district, for the reason that a majority of the adult owners of land did not sign the petition. The statute evidently requires that the legal owners shall sign the petition. Hurd's Stat. 1881, pp. 458, 467.

The assent of a majority of the owners of the land in the proposed district to the formation of a corporation with unlimited powers of assessment, was intended to be fundamental and jurisdictional. Bostwick v. Skinner, 80 Ill. 147; Iverson v. Loberg, 26 Id. 179.

The assent, in the form prescribed by the statute, of those to be assessed, is to be regarded as a condition precedent, which can not be dispensed with, and a want of compliance with this requirement is fatal at any stage of the proceedings. People v. Mayor, 51 Ill. 17; Cooley on Taxation, 464.

It has always been held that this power in the legislature is subject to the limitation that a local burden can not be imposed without the consent of the people to be affected. Directors v. Houston, 71 Ill. 323; Updike v. Wright, 81 Id. 50.

The finding of the commissioners that a majority of the land owners had united in the petition, is only prima facie, and may be disproved. Cooley on Taxation, 465. See, also, sec. 5 of the act.

It is a familiar principle that in summary proceedings, which may result in divesting title, the law is to be strictly construed, and nothing is to be taken by intendment. People ex rel. Miller v. Otis, 74 Ill. 384; Mix v. People ex rel. Pierpont, 72 Id. 241; National Bank v. Cook, 77 Id. 623; City of Chicago v. Rock Island R. R. Co. 20 Id. 290; Chicago v. Wright, 32 Id. 192. To constitute an officer de facto, there must be some color of right to the office. Pritchett v. People, 1 Gilm. 529.

And there must be a de facto public office, and not a private affair, as in this case. There is a marked distinction between a de facto public officer whose acts concern the public, and a mere usurper of the office of a private corporation. F. R. Co. v. G. J. R. & D. Co. 1 Allen, 562.

Mr. WILLIAM B. WEBBER, for the appellees:

The legal existence of a corporation, and the acts of its officers, when they concern the public or the rights of third persons, can not be inquired into in a collateral proceeding. Alderman v. School Directors, 91 Ill. 199; Trumbo v. People, 75 Id. 562; Village of Nunda v. Village of Chrystal Lake, 79 Id. 311; Baker v. Backus, 32 Id. 79; Renwick v. Hall, 84 Id. 162; President and Trustees v. Thompson, 20 Id. 199; Kettering v. City of Jacksonville, 50 Id. 39; Town of Geneva v. Lake, 61 Id. 397; Village of Hyde Park v. Boyden, 94 Id. 26.

The remedy for an over-valuation is by an application to the assessor, and not to the courts, where there is no fraud. Howe v. City of Boston, 7 Cush. 273; Osborn v. Danvers, 6 Pick. 98; Boston Water Co. v. Boston, 9 Metc. 199; Bank of Shawneetown v. Cook, 77 Ill. 622; Adsit v. Cook, 76 Id. 198.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a proceeding for the collection of an assessment for drainage purposes, commenced to the May term, 1881, of the Champaign county court, against the land of appellant.

On the 24th of December, 1879, William R. Sullivan and nineteen others filed with the town clerk of St. Joseph township a petition, addressed to him, representing themselves as a majority of the adult land owners of a proposed drainage district, described by metes and bounds. The steps required by the statute for the organization of drainage districts were pursued and the district formed, the assessment made, and not having been paid, application was made to the county court for judgment, which was rendered for the sale of appellant's lands for payment of the assessment.

It is not claimed that any of the forms required by the statute for organizing such districts have been omitted. It is, however, sought to show that a number of the petitioners are not owners of lands, as required by the statute,--that if their names were rejected there would not be the number of petitioners required by the statute,--and the district was never organized as required by the statute, and the assessment was therefore unauthorized and void; that there is no such organization as the drainage district, and it is incapable of exercising corporate powers.

Even if the validity of the organization of a corporation could be attacked in a collateral proceeding, the rules of evidence do not permit the proof of the want of title to land by verbal testimony. The title to real estate is required to be in writing, under seal, and all know that the contents of such instruments can not be proved by verbal testimony unless the original is lost or destroyed. The best evidence must be produced, and secondary evidence can not be admitted unless the best is not attainable. Title, or the absence of title, can not be proved by verbal testimony so long as there is written evidence. Here...