Owners of Lands v. People Ex Rel. Madison T. Stookey.

• Citation: 113 Ill. 296
• Parties: OWNERS OF LANDSv.THE PEOPLE ex rel. Madison T. Stookey.
• Decision Date: 05 February 1885
• Court: Supreme Court of Illinois

113 Ill. 296

OWNERS OF LANDS

v.THE PEOPLE ex rel. Madison T. Stookey.

Supreme Court of Illinois.

Filed at Mt. Vernon Feb. 5, 1885.

OPINION TEXT STARTS HERE

APPEAL from the County Court of St. Clair county; the Hon. WILLIAM J. UNDERWOOD, Judge, presiding.

Mr. J. M. DILL, and Messrs. FLANNIGEN & CANBY, for the appellants:

The drainage district in this case was organized under section 43, chapter 42, of the Revised Statutes, and we think it an illegal corporation because the drainage commissioners therein named are directly appointed by the legislature, which is prohibited by the constitution from making any appointment to office. Const. art. 5, sec. 10; Harward v. St. Clair Levee and Drainage Co. 51 Ill. 136; State v. Kennon, 7 Ohio St. 546; Wood v. United States, 15 Ct. of Claims, 151.

By section 31, article 4, of the constitution, as amended in 1878, the legislature is authorized to “provide for” the organization of drainage districts,--not to organize them. The legislature thus may vest the corporate authorities thereof with power, etc., but has no power given to appoint corporate authorities.

The drainage commissioners are an illegal corporation because not elected by the people of the drainage district, or appointed in any mode to which they have given their assent. The “corporate authorities” who may impose taxes, etc., are municipal officers, who are either directly elected by the people, or appointed in some manner to which they have assented. Harward v. St. Clair Levee and Drainage Co. 51 Ill. 136; Hessler v. Drainage Commissioners, 53 Id. 113; Gage v. Graham, 57 Id. 144; Updike v. Wright, 81 Id. 50; Cornell v. People ex rel. 107 Id. 372.

The amendment of the constitution of 1870, giving the legislature power to vest the “corporate authorities” of such districts with power to make drains, etc., by special assessments, is a limitation upon the power of the legislature to vest such right in any other than the corporate authorities.

The board of appeals created by section 46 of the act, is not authorized by the constitution and laws of the State, and is an illegal tribunal--a non-judicial body, invested with judicial functions. Poppen v. Holmes, 44 Ill. 360; Bullock v. Goemble, 45 Id. 218; Hall v. Marks, 34 Id. 358.

The constitution having vested and distributed the whole judicial power in certain courts, it is not competent for the legislature to confer such power upon any other than the courts therein named. People v. Maynard, 14 Ill. 422; Beesman v. City of Peoria, 16 Id. 484; Milwaukee Industrial School v. Supervisors, 40 Wis. 328; Baton Rouge v. Dearing, 15 La. Ann. 208; Chandler v. Nash, 5 Mich. 409; Waldby v. Callendar, 8 Id. 430; Lafou v. Dufrocq, 9 La. Ann. 350; Hodgson v. Milward, 3 Grant, (Pa.) 406.

The drainage commissioners may appeal from this board on every ground, while the party whose lands are assessed is allowed an appeal only on one ground--that the assessment is greater than the benefits. Hurd's Stat. 1883, chap. 42, sec. 26.

The “due process of law” except by which a man can not be deprived of life, liberty or property, is construed to be a law or provision for a hearing before condemning, and which arrives at a judgment through what is ordinarily known as judicial process, upon a trial, according to the course of the common law. Warden v. Mount, 78 Ky. 89; Taylor v. Porter, 4 Hill, 140; Westervelt v. Gregg, 12 N. Y. 209; Bank of Columbia v. Okely, 4 Wheat. 244.

The legislature is prohibited from passing any special or local laws, where a general one can be made applicable. Const. art. 4, sec. 22.

If these two acts can not coëxist, and the manifest object of the legislature be carried out, both must be declared void. Barressalbo v. People, 17 Ill. 101; Stribling v. Prettyman, 57 Id. 372; Way v. Way, 64 Id. 406.

Messrs. HAY & KNISPEL, for the appellee:

In the case of Moore v. People, 106 Ill. 376, this court held this act to be constitutional. Appellant having signed the petition upon which the formation and organization of the district were based, he is precluded from denying the validity of the act. Blake v. People, 109 Ill. 504; Cooley's Const. Lim. 181.

The legislature, alone, is vested with the discretionary power of saying when a general law can be made applicable.

It is the statute that creates the corporation,--not the county court; but the General Assembly is left unrestricted by the constitutional amendment as to the manner of creating drainage corporations.

The legislature has not appointed any officers, but has simply imposed additional duties upon officers elected by the people, and for the exercise of these duties it has designated the very body elected by the people to perform the duties most intimately connected with these additional duties. See the case of People v. Salomon, 51 Ill. 50, which was approved in People v. Brislin, 80 Ill. 423, and Dunham v. People, 96 Id. 331.

It is the common practice, in all States, to appoint a “board of review” or “board of appeals” to hear objections from taxpayers, and to give them an opportunity to be heard before the assessment becomes fixed and final against them. Such boards are not judicial bodies. It is in the discretion of the law making power to say of what persons or officers these boards shall consist. Cooley on Taxation, 265, et seq., 528, 529; Peoria v. Kidder, 26 Ill. 351.

There can be no constitutional objection to section 46 of the Drainage act. We have the same provisions in the Revenue act, and they have been repeatedly upheld by this court. People v. Big Muddy Iron Co. 89 Ill. 116; Felsenthal v. Johnson, 104 Id. 21.

So the act establishing the State Board of Equalization was held constitutional. People v. Solomon, 46 Ill. 333.

It is clearly within the power of the legislature to say who shall ascertain and determine the extent of the special benefits, and who shall assess them. ( Crawford v. People, 82 Ill. 557.) The authorities cited by appellants under this head have no bearing upon the case whatever. Cooley on Taxation, 528, 529.

The objection that this section of the statute deprives the land owner of his property without due process of law, is totally unfounded. Cooley on Taxation, 429, and authorities cited.

The board of appeals has only to say whether or not the amount of taxes assessed is reasonable and just. Ample opportunity is given to the land owner to question every step taken in the organization of the district, and for any illegality he has adequate remedy. That remedy is the writ of certi orari. Low v. Railroad Co. 18 Ill. 324; Commissioners v. Supervisors of Carthage, 27 Id. 140; People v. Wilkinson, 13 Id. 660; Bailey v. McCain, 92 Id. 277.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an application for a judgment for the amount of a special assessment to construct a drain. The drainage district was organized under the act entitled “An act to provide for the construction, maintenance and repair of drains and ditches, by special assessments on the property benefited thereby,” approved May 29, 1879. The judgment below is sought to be reversed upon objections, alone, to the constitutionality of that act. In passing upon these objections, it will be most convenient to follow the order in which they are presented and discussed in the printed arguments before us.

First--It is contended that section 43 is within the inhibition of section 10, article 10, of the constitution, which prohibits the General Assembly from appointing or electing any person to an office. This assumes what can not, in our opinion, be maintained, namely, that by that section some one is appointed or elected to an office. Obviously, before there can be an appointment or an election to an office, the office itself must have an existence, either by virtue of the constitution or by virtue of some statute. It is not pretended that the constitution creates the office of “drainage commissioner,” or that such office is created by any other statute than the act of May 29, 1879, under consideration, but only that it is created by this section of that act. But the language of this section assumes to create no office. It purports, simply, to add duties to an office created by the constitution. Its language is: “The county commissioners, in counties not under township organization, shall be the drainage commissioners in and for their respective counties,” etc. In other words, the county commissioner shall, in addition to the duties previously devolved upon that office, discharge the duties of drainage commissioner, which duties are further specifically defined in other sections. All this is to be done by the county commissioner because he is county commissioner, and not because he holds some other office. It would seem quite apparent the meaning would have been precisely the same if, throughout the act, the term, “drainage commissioner,” had been entirely omitted, and the words, “county commissioner,” had been substituted where it occurs.

The question is not new in this court. The constitution creates the offices of treasurer and sheriff. The General Assembly has enacted that “the treasurers of counties under township organization, and the sheriffs of counties not under township organization, shall be ex officio county collectors of their respective counties.” (Rev. Stat. 1874, p. 881, sec. 144.) No material distinction can be observed between this language and that in the 43d section of the Drainage act, so far as relates to the additional duties imposed upon an office already in existence. The word, “ ex officio,” only expresses in the one case what is necessarily implied in the other. If county commissioners are drainage commissioners merely because of the office, which, as we have shown, is the undoubted meaning of the language, then they are ex officio drainage commissioners. In Kilgore v. The People, 76 Ill. 550, in passing upon the question whether collector is an office, and after referring to the...