People ex rel. Mann v. Allen

• Decision Date: 24 April 1925
• Docket Number: No. 16493.,16493.
• Citation: 317 Ill. 92,147 N.E. 479
• Parties: PEOPLE ex rel. MANN, County Collector, v. ALLEN et al.
• Court: Illinois Supreme Court

317 Ill. 92

147 N.E. 479

PEOPLE ex rel. MANN, County Collector,

v.ALLEN et al.

No. 16493.

Supreme Court of Illinois.

April 24, 1925.

Application by the People, on the relation of Joseph Mann, County Collector, for judgment and order of sale for delinquent installments of drainage assessment, to which W. C. Allen and others filed objections. From judgment rendered, both parties appeal.

Reversed and remanded, with directions.

Appeal from Whiteside County Court; William A. Blodgett, judge.

Robert W. Besse, State's Atty., of Sterling, McMahon & Bell, of Fulton, and McCalmont & Ramsay, of Morrison, for appellant.

W. C. Allen, of Rock Island, and Wood & McNeal, for appellees.

DUNN, J.

The county collector of Whiteside county applied to the county court for judgment and order of sale against certain lands situate in Whiteside and Rock Island special drainage district for delinquent installments of an assessment made by the drainage district. The landowners filed objections to the judgment, which were sustained except as to certain owners whom the court adjudged to have waived the right to object by the payment of a previous assessment. The collector appealed from the judgment in favor of the owners whose objections were sustained, and the owners whose objections were overruled appealed from the judgment against their lands. By agreement of the parties a single transcript of the record was filed, the appeals were argued together, and they have been considered and will be disposed of as one case.

The drainage district was organized in 1883 under the Farm Drainage Act of 1879 (Laws of 1879, p. 142), as amended in 1881 (Laws of 1881, p. 87), as a special drainage district for the purpose of ‘constructing, repairing and maintaining a drain and drains, a ditch and ditches, an embankment and embankments, a grade and grades and all, both and each within said proposed special drainage district for agricultural and sanitary purposes.’ The district consisted originally of 13,460 acres, but has since been enlarged by the addition of new territory, so that it now embraces 16,402.23 acres, lying for the most part in the southwest part of Whiteside county but extending into Rock Island county. It lies between the Mississippi river on the west, and the Rock river on the southeast, the greater portion of it to the west and northwest of the village of Erie, in Whiteside county. Between Erie and the village of Hillsdale, in the northeast part of Rock Island county, about six miles southwest of Erie, the Chicago, Burlington & Quincy Railroad runs through the district at an average distance of a mile or a mile and a half from Rock river. The railroad is built upon a grade, in which there is an opening about a mile east of Hillsdale through which runs a slough extending south to the Rock river, known as the Meredocia and Docia. The slough extends north and northwest from the railroad, forming the boundary between Whiteside and Rock Island counties and joining a slough known as the Meredocia, which extends to the Mississippi. The land in its natural state was subject to overflow from the Mississippi river from the northwest, Rock river from the south, and Rock creek from the east; but another drainage district on the northwest constructed a dike across the slough, which has since kept the water of the Mississippi river off the lands of the district involved in this suit. After the formation of the district, subdistricts were organized, and dikes were constructed by this district and others adjoining which protected the lands of the district, other than those lying between the railroad embankment and Rock river, from overflow from Rock river and Rock creek from the east, except from backwater coming from Rock river through the openings in the railroad grade between the villages of Erie and Hillsdale. Such backwater came upon the lands of the district frequently, and the assessment in question was levied to protect the lands from such overflow. In 1917 sixty-two landowners in the district presented a petition to the drainage commissioners reciting that they had learned of negotiations pending between the commissioners and the railroad company concerning a contract by which the company would allow the district to utilize the railroad roadbed from Erie southwest to the line between sections 14 and 15, about three miles, as a dike to prevent Rock river from overflowing the district, the company to fill all openings in the grade southwest of Erie and to keep said openings closed, and to put in and maintain suitable concrete pipe culverts in all other openings from the east line of section 15 to where the railroad grade crosses the highway running east from Hillsdale, the district to construct a dike from where the railroad intersects the east line of section 15 on the public highway south to where the highway turns west, thence on the public highway west to the high ground immediately east of the village of Hillsdale, and to remove the bridge on the highway across the Meredocia slough and substitute in its place a suitable culvert, with a proper floodgate that could be operated to keep Rock river from flowing into the district when the river is high and allow the water to flow out of the district into the river when the river is low, the dike to be constructed at such a grade that the top would be three feet higher than the top of the rails in the track of the railroad between its mileposts 15 and 13, the district to bind itself to construct and maintain, for the purpose of facilitating the flow of water in the Meredocia slough, a new channel with 30-foot bottom, forming an outlet for said slough into Rock river, and the district to hold the company harmless from claims brought against the company on account of closing up such openings or any of them. The petition requested that the commissioners enter into such a contract with the company and proceed with the enterprise without delay. After the presentation of this petition, the commissioners determined to proceed with the construction of the improvement, made a new classification of the lands of the district, levied an assessment of $84,697.18, and completed the work.

The objections filed by the landowners were originally eight in number, and subsequently by leave of the court seven additional objections were filed. On motion of the people some of the objections were stricken by the court, and the counsel do not agree as to whether some of the questions which have been argued were properly raised by the objections which remain or by the objections filed. Considerable space in the briefs is occupied by the discussion of these questions. It is not necessary to go into the consideration of them with reference to the objections in detail, because we regard the questions which the objectors state in their reply brief to be the vital objections in the case as properly before the court. These questions are: Did the district have power to construct a levee? Did the law require the meeting to confirm the classification to be held in the district? Did the law require notice of the meeting to confirm the classification of new improvement to include a copy of the petition for changes on which the new classification was based? Did the voluntary and intentional act of the commissioners in cutting out 40 acres, more or less, of the original district, render the classification wholly void? Does the estoppel section apply to assessments that are void or only to those that are voidable? Can a curative act create a liability? Does section 27 of the Farm Drainage Act as re-enacted extend to special drainage districts?

The act of 1879, under which the drainage district was organized, does not mention levees. Its title was:

‘An act to provide for the organization of drainage districts and to provide for the construction, maintenance and repair of drains and ditches by special assessments on property benefitedthereby.’

Section 3 prescribes the proceedings to be taken for the purpose of organizing a drainage age district and requires a petition stating that the lands lying within the boundaries of the proposed district require a combined system of drainage or protection from overflow, and that the petitioners desire that a drainage district may be organized embracing the lands therein mentioned, for the purpose of constructing, repairing, or maintaining a drain or drains, ditch or ditches, within said district for agricultural, sanitary, or mining purposes, by special assessments upon the property benefited thereby. Probably to remedy what the Legislature may have regarded as an oversight, this section was amended in 1881 so as to provide that the petition should state that the lands lying within the boundaries of the proposed district require a combined system of drainage or protection from wash or overflow; that the petitioners desire that a drainage district may be organized embracing the lands therein mentioned, for the purpose of constructing, repairing, or maintaining a drain or drains, ditch or ditches, embankment or embankments, grade or grades, all or either within said district, for agricultural, sanitary, or mining purposes, by special assessments upon the property benefited thereby.

The objectors insist that there is a plain distinction between the terms ‘levee’ and ‘embankment,’ and that the former term always refers to a bank of earth which prevents the water from flowing from the district as well as from flowing into the district. We know of no foundation for such distinction. A definition of ‘embankment’ given by Webster is:

‘A structure of earth, gravel, etc., raised to prevent water from overflowing a level tract of country, to retain water in a reservoir, or to carry a roadway, etc.’

Standard Dictionary:

‘A bank or dike cast up as to resist the encroachment of a river or the ocean or to preserve serve the level of a railroad or railway bed across a valley; loosely, any...