Payson v. People ex rel. Parsons

• Decision Date: 24 October 1898
• Citation: 175 Ill. 267,51 N.E. 588
• Parties: PAYSON v. PEOPLE ex rel. PARSONS, Treasurer, et al.
• Court: Illinois Supreme Court

175 Ill. 267

51 N.E. 588

PAYSON

v.PEOPLE ex rel. PARSONS, Treasurer, et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from Livingston county court; Charles M. Barickman, Judge.

Application by J. B. Parsons, treasurer and ex officio collector of the county of Livingston, and the Oliver and Corn Grove drainage district, for judgment for a delinquent special assessment against lands of Lewis E. Payson. Objections of said Payson were overruled, and judgment entered against the land, from which he appeals. Reversed.

N. J. Pillsbury, for appellant.

A. C. Norton, for appellees.

PHILLIPS, J.

Notice of application for judgment against delinquent lands and town lots in Livingston county was duly published by appellee, the county collector, and appellant appeared and filed his objections to entering judgment against the E. 1/2 of the S. W. 1/4 of section 32, township 26, range 8 E., of the third P. M. It appears that a special assessment was levied on the above-described tract of land by the Oliver and Corn Grove drainage district, amounting to $280, and judgment was sought for that amount, with $17.27 interest and 71 cents costs, aggregating $297.98. An attempt was made to organize a drainage district through lands in the petition described, which petition prayed for the construction of a continuous ditch through lands included within said district. This ditch crossed the land of appellant a distance of about 180 rods, taking for the purposes of the ditch about 4 1/2 or 5 acres of land belonging to appellant. Appellant's agent made a contract for the sale of this land, subject to the approval of the appellant. The agent's authority only extended to making provisionalcontracts, to be passed upon by his principal. The contract of sale of this land was repudiated by appellant, and the proposed purchaser was notified of that fact within two or three weeks of the date of the contract. That was in June, 1895. Subsequently, it was proposed to organize this drainage district, and one of the landowners who was active in the preliminary steps for the formation of the district, and who made the affidavit required by the statute, giving the names of nonresident landowners in the proposed district, was notified of the ownership of this land by the appellant, who was well known by him to be a resident of the city of Washington, D. C., and yet no notice of the proceedings for the organization of the district was ever given or attempted to be given to appellant. On the levy of the special assessment to pay for this ditch so constructed through appellant's land, the publication of notice that this assessment was delinquent was made, and also notice of sale. Appellant's objections set up the fact of his ownership, and knowledge thereof by the petitioners; the absence of notice to him, as required by the statute; that no notice was given him, or attempted to be given, of the appointment of commissioners to assess benefits, nor when they would apply to the court for the confirmation of their report; that there was no finding by the court of jurisdictional facts necessary to be found before it was authorized to appoint commissioners, and that no damages were allowed or compensation made for lands actually taken for the ditch. These objections were overruled, and judgment was entered against the land for the amount of the special assessment, interest, and costs; and appellant prosecutes this appeal.

The county court, in establishing drainage districts, derives its jurisdiction from the statute alone, and no presumption arises to support its action in any given particular. Every essential fact necessary to such jurisdictionmust appear affirmatively of record, as nothing shall be intended or presumed to be within the jurisdiction. Haywood v. Collins, 60 Ill. 328;Firebaugh v. Hall, 63 Ill. 81;Chicago & N. W. Ry. Co. v. Galt, 133 Ill. 657, 23 N. E. 425, and 24 N. E. 674. In People v. Seelye, 146 Ill. 189, 32 N. E. 458, it was said (page 221, 146 Ill., and page 467, 32 N. E.): ‘If it [the court] has proceeded without jurisdiction, it is equally unimportant how technically correct and precisely certain in point of form the record may appear. Its judgment is void to every intent and for every purpose, and it must be so declared in every court in which it is presented.’ See, also, Sheldon v. Newton, 3 Ohio St. 494; 12 Am. & Eng. Enc. Law, 311; Hernandez v. Drake, 81 Ill. 34;Munroe v. People, 102 Ill. 406.

To obtain jurisdiction by means of publication, it must affirmatively appear that the statute has been strictly pursued, and its provisions complied with. In McChesney v. People, 145 Ill. 614, 34 N. E. 431, the application was for judgment for a delinquent special assessment for local improvements; and it was held that the court had no jurisdiction to confirm the assessment, because the proof of the mailing, posting, and publication of the notices required by the statute was not made. The case of McChesney v. People, 148 Ill. 221, 35 N. E. 739, was an application by the county collector of Cook county for a judgment against the lands for a collection of taxes and special assessment. The appellants appeared in the county court, and objected to the rendition of judgment, on the ground that the court had no jurisdiction to render judgment of confirmation for the want of proper notice. On this application for judgment they were allowed to show that the notices appearing in the record were not legal, because two of the commissioners and a stranger had signed the notices, and not the three commissioners jointly. Section 27 of the act under which the assessment was made in that case required the commissioners to give notice of such assessment and the term of court at which a hearing would be had. The court said (page 225, 148 Ill., and page 741, 35 N. E.):‘It is a general rule, and one well understood, that in a proceeding for the collection of taxes, where the owner may be deprived of his property, the requirements of the statute must be strictly followed. * * * The object of this requirement is to afford the owner whose land has been assessed an opportunity to appear and contest the validity and the justness of the assessment; and, unless the notice required by the statute has been given, the court in which the assessment roll has been filed has no jurisdiction to confirm the assessment. The landowner, when notified by the commissioners, as provided by the statute, is bound to appear and make his defense; and, if he fails, the judgment of confirmation will be conclusive on him; but he is under no obligation to pay any attention to a notice given by persons other than the commissioners who have been appointed to make the assessment.’ In Schertz v. People, 105 Ill. 27, it was held that, on an application for judgment for a delinquent special assessment, the record of the entire proceedings, including the judgment of confirmation, was before the court; and, if it appeared that those proceedings were so defective as not to authorize the court to act, then the objections could be made as well on application for judgment as at any other time, on the ground that, when the court acts without jurisdiction, its judgments and orders are void, and can be attacked at any time before any court. To the same effect are Fortman v. Ruggles, 58 Ill. 207, and Senichka v. Lowe, 74 Ill. 274.

It is insisted that, if appellant has any remedy against the collection of this assessment, he is not now in the proper forum, as this is a collateral proceeding. The appellant, not being named as a party to the proceedings, and receiving no notice thereof from the commencement thereof until after the assessment was made and filed in the county court, is not concluded by the judgment of confirmation or any order of the court in reference to said drainage district. Robeson v. People (Ill. Sup.) 43 N. E. 619;Murphy v. People, 120 Ill. 234, 11 N. E. 202;Clark v. People, 146 Ill. 348, 35 N. E. 60;Chicago & N. W. Ry. Co. v. Galt, 133 Ill. 657, 23 N. E. 425, and 24 N. E. 674;Railway Co. v. Brown, 136 Ill. 322, 26 N. E. 501. In this last case it was held essential to the jurisdiction of the court to enter judgment of confirmation that it obtained jurisdiction of the person of the landowner by proper notice; otherwise, if he did not appear, the judgment of confirmation would not be binding upon him, and he could show the want of jurisdiction upon the application for judgment. To the same effect are the other cases cited.

There being no presumption of jurisdiction, in the county court, of appellant, he not being named as a party or landowner, and it being shown by negation that he received no notice of the proceedings, and that none was attempted to be given, and the assessment depending upon the legality of the organization, no finding of the court of the existence of jurisdiction would be obligatory. It has never been held, where the record itself showed the evidence of jurisdiction upon which the court acted was insufficient, that the finding of the court in favor of its jurisdiction was conclusive. Goudy v. Hall, 30 Ill. 109;Fox v. Turtle, 55 Ill. 377; Fortman v. Ruggles, supra. The draninage district seeking to levy a tax on appellant's land, and deriving its power to do so from a proceeding to include such land within the drainage district by means of the statute, and the statute requiring notice to be given appellant, and there being no presumption that notice was given, appellant may content the question as to whether the court had jurisdiction over him to include his lands within the limits of the district, and make it liable for this special assessment. Schertz v. People, supra; Kilmer v. People, 106 Ill. 529;Cass v. People (Ill. Sup.) 46 N. E. 729.

It is insisted by appellee that this is a collateral proceeding, and appellant cannot contest the validity of the judgment confirming the assessment except in a direct proceeding in...