People ex rel. Fitton v. Ehler

• Decision Date: 08 February 1930
• Docket Number: No. 19450.,19450.
• Citation: 338 Ill. 67,170 N.E. 1
• Parties: PEOPLE ex rel. FITTON et al. v. EHLER et al.
• Court: Illinois Supreme Court

338 Ill. 67

170 N.E. 1

PEOPLE ex rel. FITTON et al.

v.EHLER et al.

No. 19450.

Supreme Court of Illinois.

Dec. 20, 1929.

Petition for Rehearing Stricken Feb. 8, 1930.

Proceeding by the People, on the relation of Henry Fitton and others, against Elmer Ehler and others, to oust defendants from exercise of franchise of supposed corporation known as Upper Salt Fork Drainage District. Judgment for relators, and defendants appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, Champaign County; Franklin H. Boggs, judge.

Boyer & Leonard and Dobbins & Dobbins, all of Champaign, for appellants.

Roy R. Cline, State's Atty., of Urbana, Herrick & Herrick, of Clinton, and Louis A. Busch and Earl C. Harrington, both of Champaign, for appellees.

DUNN, J.

The circuit court of Champaign county entered a judgment ousting the appellants from the exercise of the franchise of a supposed corporation known as Upper Salt Fork drainage district, in the county of Champaign and state of Illinois, and from the exercise of the powers and duties of directors of such corporation, from which this appeal has been taken.

The appellants filed a plea of justification to the information in the nature of quo warranto filed by the state's attorney charging usurpation, to which a demurrer was sustained. The district was organized in the county court of Champaign county under the Levee Act (Smith-Hurd Rev. St. 1929, c. 42), and the question presented by the plea and demurrer is, therefore, whether the plea shows that the county court had jurisdiction to enter the order declaring the district duly established as provided by law.

The demurrer assigned as special causes of demurrer, substantially, that the petition for the organization of the district did not show that it was signed by one-third of the adult owners of land within the district proposed to be organized, representing a major portion, in area, of such lands; that the lands of the district included lands in three other drainage districts, and it did not appear that the owners of such lands were petitioners for the organization of the Upper Salt Fork district; that it did not appear that the names of the owners of land were set out when known, or that reasonable diligence was used in ascertaining the names of owners not known; and that the proposed ditch left the boundaries of the proposed district at three places other than its outlet and entered land wholly outside the proposed district.

The plea set out the complete record of the proceedings in the county court for the organization of the district.

In support of the judgment it is first argued by the appellees that the petition did not show any necessity for the proposed district. The petition described in detail the fertile character of the lands in the district when not inundated with water or saturated because of insufficient drainage in the crop season, their value for agriculture dependent largely on the conditions of drainage and the sufficiency of outlets therefor, the winding course of the stream, the impediments which obstructed it, so that the water in ordinary freshets would not pass through the channel without overflowing the banks, to the damage of the adjoining lands, and of the efficiency of tile drainage systems having outlets into the channel-conditions all of which would be improved by the proposed straightening of the stream, removing obstructions to its flow, and giving a uniform fall and greater velocity to the current. This was a sufficient showing of the necessity for the district.

It is also contended that the petition was defective because it did not show affirmatively that it was signed by the requisite numberof qualified petitioners representing the required area of land in the proposed district. Section 2 of the Levee Act provides that, whenever ‘one-third of the owners of lands within a district proposed to be organized who shall have arrived at lawful age and who represent a major portion in area of the said lands, desire to construct a drain or drains,’ etc., across the lands of others for agricultural, sanitary, or mining purposes, and maintain the same by special assessments upon the property benefited thereby, such owners may file in the county court a petition signed by the requisite number of landowners owning the required area within the district proposed to be organized as in section 2 provided, praying for the organization of the district and the appointment of commissioners. The petition shows on its face, in the language of the statute, that the petitioners ‘are one-third of the owners of land within the territory herein proposed to be organized into a drainage district who have arrived at lawful age and represent a major portion in area of said lands,’ and in this respect complies with the statute. It is not necessary to the validity of the petition that it contain the description of the different tracts of land severally belonging to the petitioners. The statute does not require the exact number of acres contained in the proposed district or the exact number of acres owned by the petitioners or by any landowner to be stated on the face of the petition. It is sufficient if the petition furnishes such information as makes the ascertainment of the acreage possible by investigation. It is made the duty of the court to hear evidence and determine whether or not the petition contains the requisite number of signatures of landowners representing the required area of lands. The petition in this case having averred that the petitioners were one-third of the owners of land who had arrived at lawful age and represented the major portion, in area, of the lands, the court heard proof and found that these statements were true. The petition was sufficient in this respect. Wayne City Drainage District v. Boggs, 262 Ill. 338, 104 N. E. 676, 678;North Richland Drainage District v. Karr, 280 Ill. 567, 117 N. E. 770. The rule is the same under the Farm Drainage age Act. Craig v. People, 188 Ill. 416, 58 N. E. 1000.

The appellees cite and rely upon Drummer Creek Drainage District v. Roth, 244 Ill. 68, 91 N. E. 63, 65, and Soldier Creek Drainage District v. Illinois Central Railroad Co., 323 Ill. 350, 154 N. E. 153, in support of their claim that it is necessary that the petition be so drawn that it can be ascertained from its face that it is signed by the requisite number of owners representing the required area of land. In the former case, in describing the boundary of the district, the petition stated: ‘Commencing at the north line of section ten (10) * * * extending south to the south line of section fifteen (15), * * * thence west to the southwest corner of said section fifteen (15), thence south,’ etc., continuing with various lines, and ending, ‘thence west to the place of beginning.’ The place of beginning might have been a foot east of the northwest corner or a foot west of the northeast corner of section 10. This description left it wholly uncertain whether sections 10 and 15 were intended to be included in the district or excluded from it. It was not only wholly impossible to ascertain the number of acres in the district and the number of landowners from the petition itself, but it was impossible by the introduction of evidence to show either the number of acres or the number of owners. The petition did not identify the lands proposed to be organized into a district, and furnished no basis for the introduction of evidence on these questions. In Wayne City Drainage District v. Boggs, supra, it was said in regard to this case: ‘It was impossible to ascertain the extent of the district from the information furnished in the petition. The holding there was simply to the effect that the petition must contain such information as will enable any one to ascertain with accuracy the number of acres of land and the number of owners in the proposed district.’ The substance of the holding in the Roth Case on this point is that the petition must describe the boundaries of the district.

The question in Soldier Creek Drainage District v. Illinois Central Railroad Co., supra, was different. That was an appeal from the order of the county court organizing the district, and the case was reviewed upon the evidence heard by the county court. The county court found that the petition contained one-third of the owners representing a major portion of the lands, in area, within the proposed district, but on the appeal we held that this finding could not be correct, but was in direct conflict with the agreed stipulation appearing in the record between the parties.

The order of the court in the Soldier Creek District Case was subject to review and was reviewed upon a direct attack by appeal, and upon such review was found not to be sustained by the evidence. The present information in the nature of quo warranto is not a direct attack, but collateral to the order of the county court which is questioned. The order is therefore not open to attack by this information, unless the county court which entered it acted without jurisdiction. That court found ‘that the persons who have signed said petition are of lawful age and are one-third of the adult landowners owning a major portion, in area, of the land to be affected by such proposed work.’ This finding was conclusive that the court had jurisdiction and cannot be collaterally attacked. By the filing of the petition in the county court and the posting and publication of the statutory notice to all persons interested, the county court had jurisdiction of the subject-matter and of the parties and was authorized to act. ‘If it erred in holding that the petition was signed by the requisite number of adult landowners of the district, or in refusing to permit persons who had signed the petition for the organization of the district to withdraw their names from the petition, the remedy of the parties in interest who deemed themselves aggrieved by the decision...