People ex rel. Olmsted v. Prather

• Decision Date: 12 October 1926
• Docket Number: No. 17345.,17345.
• Citation: 322 Ill. 280,153 N.E. 382
• Parties: PEOPLE ex rel. OLMSTED, County Collector, v. PRATHER et al.
• Court: Illinois Supreme Court

322 Ill. 280

153 N.E. 382

PEOPLE ex rel. OLMSTED, County Collector,

v.PRATHER et al.

No. 17345.

Supreme Court of Illinois.

June 16, 1926.

Rehearing Denied Oct. 12, 1926.

Application by the People, on the relation of G. Stanley Olmsted, County Collector, for judgment and order of sale for delinquent drainage assessment, objected to by Albert M. Prather and others. Objections overruled, and judgment for petitioner, and objectors appeal.

Reversed and remanded.Appeal from County Court of Vermilion County; William T. Henderson, judge.

Clark & Hutton, of Danville, for appellants.

Elmer O. Furrow, State's Atty., of Danville, Ray & Young, of Rossville, and Lewman & Carter, of Danville, for appellee.

THOMPSON, J.

In 1920 drainage district No. 3 of the towns of Grant and Ross, in Vermilion county, was organized under authority of section 76 of the Farm Drainage Act (Smith-Hurd Rev. St. 1925, c. 42, § 161). It included within its boundaries two farms belonging to George Prather. April 5, 1924, a special assessment was spread against the lands of the district. Prather died intestate on October 5, 1924, leaving surviving his widow and three adult children. Appellants, being the widow and two of Prather's children, refused to pay the assessment against their interest in the lands which they inherited from Prather, and the county collector made application to the county court of Vermilion county for judgment and order of sale. Appellants filed a number of objections, the substance of which is that the district was illegally organized and that the commissioners did not have jurisdiction to enter the order levying the assessment in question. The court overruled the objections and entered judgment. This appeal followed.

[1] Appellee contends that, inasmuch as there has been no administration of the estate of George Prather and the interest of the widow set off, the widow and two of the heirs cannot file an objection to the application of the county collector for judgment where one of the heirs refuses to join with them in the objection. Unless the widow elects to take dower in the lands of the deceased within one year after letters of administration have been issued, she receives as her absolute estate, in lieu of dower, one-third of each parcel of real estate of which the intestate died seized. At the time these objections were filed and at the time judgment was entered the fee to the lands in question was in the widow and the three children, as tenants in common. If the contentions of appellee were sustained, these objectors would have their property subjected to a judgment for special assessments, which they contend are void. The court properly refused to dismiss the objections on this ground.

Much of appellants' brief is devoted to argument is support of their contention that the district was not organized according to law. Whatever merit there may be in their claims the question is not open in a proceeding of this character. Granting that the district was not legally organized, it is a de facto drainage district, and the legality of the action of the commissioners in organizing it cannot be inquired into upon the application of the county collector for judgment for delinquent drainage assessments. There was a valid law in existence under which such a drainage district might have been legally organized, and there was an attempted organization. There is now a user of the franchise pertaining to the drainage district, and the acts of its officers do not constitute a mere usurpation of power without the authority of any law. It cannot be determined in this collateral proceeding whether this de facto drainage district was legally organized. People v. Dyer, 205 Ill. 575, 69 N. E. 70;Rogne v. People, 224 Ill. 449, 79 N. E. 662;People v. York, 247 Ill. 591, 93 N. E. 400.

[5] To sustain their objection that the lands were not legally classified, appellants introduced evidence for the purpose of showingan absence of records showing that the necessary preliminary steps had been taken to make a valid classification. Section 2 of the Farm Drainage Act (Smith-Hurd Rev. St. 1925, c. 42, § 83) provides that the town clerk shall be the clerk of the drainage commissioners, and that he shall keep in a well-bound book, to be known as the ‘Drainage Record,’ a record of the proceedings of the commissioners. When the law requires records of proceedings to be kept by drainage commissioners and similar bodies, they are the only competent evidence of the action to which they refer, and such records cannot be contradicted or supplemented by parol by the body concerning whose action the record speaks. People v. Carr, 231 Ill. 502, 83 N. E. 269;People v. Carr, 265 Ill. 220, 106 N. E. 801;People v. Hartquist, 311 Ill. 127, 142 N. E. 475. The drainage commissioners are exercising a special authority conferred upon them by the drainage statute and there are never any intendments or presumptions of law in favor of their acts. Whatever they have done must be found from their record, and unless sufficient is found to show that they have acted upon particular matters required, the law does not, and the courts cannot, presume that they have so done. People v. Warren, 231 Ill. 518, 83 N. E. 271. Unless it is shown by the records of the drainage commissioners that the notice to landowners, required by the statute, of the meeting to hear objections to the classification of the lands made by the commissioners, has been given, or the landowers voluntarily appear, there is a lack...