People ex rel. Vaughan v. Scanlan

• Decision Date: 16 December 1914
• Docket Number: No. 9746.,9746.
• Citation: 107 N.E. 149,265 Ill. 609
• Parties: PEOPLE ex rel. VAUGHAN, County Collector, v. SCANLAN et al.
• Court: Illinois Supreme Court

265 Ill. 609

107 N.E. 149

PEOPLE ex rel. VAUGHAN, County Collector,

v.SCANLAN et al.

No. 9746.

Supreme Court of Illinois.

Dec. 16, 1914.

Appeal from Lee County Court; Robert H. Scott, Judge.

Proceeding by the People, on the relation of Frank C. Vaughan, County Collector, against Thomas Scanlan and others. From judgment for relator, defendants appeal. Reversed and remanded, with directions.

Brooks & Brooks, of Dixon, for appellants.

Harry Edwards, State's Atty., of Dixon, Charles H. Wooster, of Amboy, and Trusdell, Smith & Leech, of Dixon, for appellee.

COOKE, J.

This is an appeal from a judgment of the county court of Lee county rendered against the appellants' property for alleged delinquent assessments levied by Union Drainage District No. 1 of the towns of Harmon and Marion, in Lee county.

Union Drainage District No. 1 was organized under the Farm Drainage Act and certain improvements were made. Several years thereafter, and on February 9, 1912, the circuit court of Lee county issued a writ of mandamus on the petition of certain landowners of the district, directing the commissioners to proceed at once to cause to be made a survey and an estimate of the expense of deepening, widening, cleaning out, and improving the main ditch in the said district through its entire length, from the outlet on the west line of section 27 in said town of Harmon, so as to provide sufficient drainage for the lands within the district. The commissioners thereupon employed an engineer, who on June 18, 1912, made a written report to the commissioners, which is designated as ‘Engineer's Report No. 1,’ wherein he made recommendations for the improvement of the main ditch from the outlet on the west line of said section 27 in the town of Harmon to the east line of section 30 in the town of Marion. The ditch was divided into stations, the station at the outlet being No. 0 and the one at the east line of said section 30 being No. 231. The stations were 100 feet apart. There is a bridge over the ditch at station No. 231, known as the Blackburn bridge. The engineer estimated that the amount of excavation necessary between stations 0 and 231, in order to improve the ditch to the necessary width and depth and to place it in proper condition, was 53,144 cubic yards, which he estimated would cost $7,997.10 to remove.Thereafter, on July 15, 1912, the commissioners of the district held a meeting, as is disclosed by their records, for the purpose of conferring on the matter of the addition of certain lands to the district and to ascertain the liabilities and outstanding indebtedness of the district and the ‘probable cost of the work of the proposed cleaning, repairing, and otherwise bettering the condition of the main ditch of the above-mentioned district, and then and there did authorize a levy of $11,504.97 and ordered the clerk of the board of commissioners to make the levy as aforesaid,’ according to the classification of the lands of the district. This is the only record showing the making of this levy or the purpose for which it was made. Thereafter, on July 30th, the commissioners advertised for bids for the proposed improvement in the district, which was described as follows:

‘Cleaning out, alteration of course, and improvement of banks of the present existing open ditch, known as the main ditch, in the said district, said improvement extending from the intersection of said ditch with the west line of section No. 27 in said Harmon township to the intersection of said ditch with the east line of section No. 30 of said Marion township.’

By the advertisement the 22d day of August, 1912, was fixed upon as the day the commissioners would receive bids at the Harmon Bank, in the village of Harmon, for the construction of the proposed work. On that day the commissioners met, and the bid of Henry P. Johnson ‘to clean out the said main ditch and remove the dirt according to said plans and specifications for the sum of fourteen cents (14c) per cubic yard,’ being the lowest bid, was accepted, and a written contract was entered into between said Johnson and the commissioners on November 5, 1912, for the doing of the work set forth in the advertisement at the price specified in the bid. The plans and specifications referred to were not offered in evidence.

On September 6, 1912, the engineer made his report designated as ‘Report No. 2,’ in which he made recommendations for the improvement of the ditch between stations 231 and 283, lying east of the Blackburn bridge. On November 1, 1912, the engineer made his report No. 3 to the commissioners, in which he made recommendations for the improvement of the ditch up to and including station 320, which was at the limits of the district. This last report also was in reference to work to be done east of the Blackburn bridge. By reports Nos. 2 and 3 the engineer recommended considerable new work to be done by way of excavating a new ditch. His estimate for the cost of the work to be done east of the Blackburn bridge, or station 231, including both the excavation to be made in the old ditch and the excavation of new ditches, and the estimate of $531.90 for the costs of a new right of way, was $2,876.78.

When Johnson arrived on the ground with his machinery to do the work, instead of beginning upon that portion of the ditch described in his contract he placed his dredge east of the Blackburn bridge, and under an oral contract thereupon entered into between himself and the commissioners, without any advertisement or public letting, whereby it was agreed he should be paid 14 cents per cubic yard for excavating new ditches, he proceeded to do the work contemplated and recommended by the engineer in his reports Nos. 2 and 3. As this work progressed the commissioners paid him therefor out of the assessment of $11,504.97 made by them at their meeting on July 15, 1912.

It does not satisfactorily appear from the record just how much money was paid for that part of the improvement east of the Blackburn bridge, but there is sufficient in the record to show that it amounted to more than the estimate of the engineer. After completing the work east of the Blackburn bridge, which he performed under oral contract with the commissioners on his private bid, Johnson than started at station 231 and proceeded westward upon the work provided for in his written contract until he arrived at station 77. At that time the funds of the district were exhausted and the work ceased. The commissioners thereupon submitted a report to the circuit court of Lee county in the mandamus suit, and petitioned the court to enter an order authorizing them to levy a further and additional assessment, upon the lands of the district to enable them to complete the work from station 77 to the outlet of the main ditch. The court thereupon entered an order finding it necessary that a further assessment be made, approved the report of the commissioners, and ordered that the commissioners proceed, without unnecessary delay, to levy an additional assessment for the purpose of defraying the costs and expenses of completing the work from station 77 to the outlet of the ditch. Thereafter the commissioners met on June 28, 1913, and the following record was made:

‘Motion made and seconded, $4,020.40 be levied on lands of district according to...