People ex rel. Deck v. McDonald

• Decision Date: 16 October 1914
• Docket Number: No. 9500.,9500.
• Citation: 264 Ill. 514,106 N.E. 501
• Parties: PEOPLE ex rel. DECK et al. v. McDONALD et al.
• Court: Illinois Supreme Court

264 Ill. 514

106 N.E. 501

PEOPLE ex rel. DECK et al.

v.McDONALD et al.

No. 9500.

Supreme Court of Illinois.

Oct. 16, 1914.

Appeal from Circuit Court, Macon County; W. C. Johns, Judge.

Quo warranto by the People, on relation of Jesse L. Deck and others, against R. E. McDonald and others. Judgment for the relators, and respondents appeal. Affirmed.Louis A. Mills and Whitley, Fitzgerald & McLaughlin, all of Decatur, for appellants.

Jesse L. Deck, State's Atty., Outten, Ewing, McCullough & Wierman, and Redmon & Hogan, all of Decatur, for appellees.

CARTER J.

This was an information in the nature of a quo warranto filed in the circuit court of Macon county by the state's attorney, on the relation of 17 landowners in an alleged drainage district, against the respondents, R. F. McDonald, U. G. Barnett, and T. J. Manecke, requiring them to show by what right they exercised the office of drainage commissioners of Union Drainage District No. 3 of the towns of Long Creek and Oakley, in that county. The respondents filed two pleas of justification, to which appellees demurred. After amendments had been made to the pleas the court sustained demurrers to both pleas. Appellants elected to abide by such pleas, whereupon the court entered a judgment of ouster and for costs against them. This appeal is prosecuted from that judgment.

The drainage district was organized by appellants on the petition of two landowners under the provisions of section 76 of the Farm Drainage Act (Hurd's Stat. 1913, p. 973), providing for the formation of districts by user where two or more parties owning adjoining lands have by voluntary action constructed ditches forming a continuous line or lines and branches which require repairs and improvements. The district as thus formed was about 3 1/2 miles in length north and south and about 3 1/2 miles in width east and west, and contained nearly 4,000 acres of land belonging to more than 80 persons. Said section 76 states that the form of procedure for the formation of such districts shall be, as near as practicable, that provided for in the other provisions of the Farm Drainage Act. Under said act, when the lands are all situated in one township the commissioners of highways of that town are to organize the district; when the lands are situated in two townships, the district is to be organized under the direction of three commissioners, to be selected by the town clerk of the town in which the greater part of the district lies, from the highway commissioners of the two towns; and when the land is situated in three or more towns in one or more counties, the county court of the county in which the greater part of the land is located is charged with the responsibility of organizing the district. Hurd's Stat. 1913, p. 963. As the lands proposed to be included in the district here in question were located in two townships, the district was organized by the second method of procedure, by three highway commissioners selected from the commissioners of the two towns by the town clerk.

[1] The principal contention of appellants is that the district having been organized by said commissioners and their finding having stated that they had heard and determined, in good faith, the matters according to law, their determination of the question of the organization is not subject to an attack in quo warranto proceedings; that such an attackis collateral in its nature. All authorities do not give the same meaning to the word ‘collateral’ in legal proceedings. See Van Fleet on Collateral Attack, 4, 5; 2 Words and Phrases, 1249. Webster's New International Dictionary defines ‘collateral’ as ‘accompanying; a side or secondary fact; * * * subsidiary; subordinate; indirect.’ A collateral proceeding has been said to be ‘another proceeding not for the direct purpose of impeaching the proceeding to which it is said to be collateral.’ 7 Cyc. 278. This quo warranto proceeding was instituted for the specific purpose of impeaching and declaring illegal the organization of the district. This court has frequently stated that a quo warranto proceeding to test the legality of a drainage district was not a collateral but a direct proceeding. People v. York, 247 Ill. 591, 93 N. E. 400;Shanley v. People, 225 Ill. 579, 80 N. E. 277;People v. City of Peoria, 166 Ill. 517, 46 N. E. 1075; Mason & Tazewell Drainage District v. Griffin, 134 Ill. 330, 25 N. E. 995;Blake v. People, 109 Ill. 504;Osborn v. People, 103 Ill. 224.

[2] Counsel for appellants further contend that whether this be a collateral or a direct proceeding the decision of the commissioners in organizing the district can only be attacked on the ground of fraud. With this we cannot agree. The commissioners, under this act, cannot determine for themselves, finally, the jurisdictional facts of the organization of the district. If such facts-any or all-are lacking, the decision of the commissioners that they have jurisdiction can be inquired into by quo warranto. McDonald v. People, 214 Ill. 83, 73 N. E. 444;People v. Strandstra, 238 Ill. 341, 87 N. E. 286;People v. Karr, 244 Ill. 374, 91 N. E. 485. Under these authorities neither the highway commissioners nor the county court could, in organizing a district under the Farm Drainage Act, conclusively determine the question of jurisdiction. In establishing drainage districts such tribunals derive their jurisdiction from the statute, and no presumption arises supporting their action in any particular.

Several of the authorities cited by counsel for appellants in support of this contention, such as Gauen v. Drainage District, 131 Ill. 446, 23 N. E. 633, and Mason & Tazewell Drainage District v. Griffin, supra, are not in point, for the reason, among others, that those two cases had under consideration the organization of a district under the Levee Act and not under the Farm Drainage Act. In the first of these two cases it was held that a district organized under one act was not subject to the provisions of the other. To the same effect is People v. Crews, 245 Ill. 318, 92 N. E. 245. Counsel cite and rely on Craig v. People, 188 Ill. 416, 421, 58 N. E. 1000, 1002. While there are some expressions in that case which might be held to support appellants' contention on this point, the court there stated that if the finding of the board should be regarded as prima facie, merely, ‘such prima facie finding is, in our opinion, undisturbed by the attack.’ Neither is the case of People v. Drainage District, 193 Ill. 428, 62 N. E. 225, in conflict with the rule here laid down, as in that case it was stated that no allegation was made that the county court, at the time of the organization of the drainage district, did not have complete jurisdiction of the person and the subject-matter. Neither do we think that the argument of counsel for appellants on this point is upheld by the case of People v. McDonald, 208 Ill. 638, 70 N. E. 646. Anything that lends support to their argument in that case is in terms modified by the later decision in the same case (McDonald v. People, supra), which has been heretofore cited in support of the rule laid down in this opinion. A careful reading of the decisions cited as sustaining appellants' position, in the light of the facts in each case, shows that they are not in conflict with the holding of this opinion that the jurisdictional facts as to the organization of a drainage district can be inquired into by quo warranto proceedings.

[3] Appellees contend that the main ditch of this district was not made by the voluntary acts of the landowners, but that it is a natural water course, known as Long creek. In Molohon v. Cashin, 258 Ill. 86, 91, 101 N. E. 264, 265, this court, in construing section 76, said:

‘It is only in cases where the complete system of drainage voluntarily constructed consists of artificial ditches constituting a continuous line or line and branches that this section authorizes the formation of a drainage district. A stream or water course still in a state of nature cannot be described or considered as a ditch constructed by the voluntary action of adjoining land owners.’

And it was there held that the question whether the main ditch was artificial was jurisdictional. The fact that the district in that...