People ex rel. Warren v. York

• Citation: 247 Ill. 591,93 N.E. 400
• Parties: PEOPLE ex rel. WARREN, County Collector, v. YORK.
• Decision Date: 21 December 1910
• Court: Supreme Court of Illinois

247 Ill. 591

93 N.E. 400

PEOPLE ex rel. WARREN, County Collector,

v.YORK.

Supreme Court of Illinois.

Dec. 21, 1910.

Appeal from Moultrie County Court; T. N. Cofer, Judge.

Proceedings by the People, on the relation of H. Ray Warren, County Collector, to collect certain taxes levied against S. A. York. From a judgment for defendant, plaintiff appeals. Reversed and remanded.J. K. Martin, State's Atty., Marion Watson, and E. J. Miller, for appellants.

F. M. Harbaugh, for appellee.

VICKERS, C. J.

This is an appeal by the people from an order of the county court of Moultrie county refusing judgment for a special drainage assessment levied by the drainage commissioners of Drainage District (by user) No. 7 of the town of Lowe, in said Moultrie county, against the W. 1/2 of the S. W. 1/4 of section 13, township 15, range 6 E., which was owned by S. A. York. The drainage district was organized by the petition of three landowners, which set forth that there was a ditch already made and in existence which drained the land described in the petition and had been made by mutual agreement of the adjoining landowners, and that said ditch had become out of repair, so that the lands of the proposed district were not adequately drained, and that the improvement of said ditch could not be done by mutual agreement. The district was organized under section 76 of the farm drainage act (Hurd's Rev. St. 1909, c. 42, § 151). Appellee, York, owned six tracts of land in this district, all of which, except the land in question, were located in section 24, township 15, range 6. Appellee's lands in section 13 were principally within the watershed drained by the old ditch, the improvement of which was the object of the drainage district. In fact, said lands adjoined the old ditch for the distance of 80 rods, and had been connected therewith by tile drains a number of years before the formation of the present district.

The particular 80 acres of land against which the assessment in question was levied were not described in the original petition for the formation of said district, nor in the notices or other preliminary proceedings in relation to the formation of the district, nor were they described in the final order of the commissioners organizing said district, which was entered on July 10, 1909. A few days after the entry of the order organizing the district, on the 28th of July, the commissioners met for the purpose of classifying the lands of the district for assessment purposes. At this meeting it was discovered that by mistake the W. 1/2 of the S. W. 1/4 of section 13, township 15, range 6 E., had been omitted in the petition, order organizing the district, and the map thereof, and that the N. 1/2 of the S. W. 1/4 of section 24 had been erroneously included in the district, instead of the 80 acres in section 13. Upon discovering such mistake the commissioners made the following order: ‘We found that a mistake had been made in the map of said drainage district in this, to wit: The N. 1/2 of the S. W. 1/4 of section 24 is included in the map of said drainage district, instead of the W. 1/2 of the S. W. 1/4 of section 13. We therefore classified the latter, instead of the former; and we do hereby certify that said mistake be corrected on the map, which we have indicated by red marks, including the latter tract and excluding the former.’ Said order was signed by the three commissioners, and dated July 28, 1909. The tract of land in question was classified at 60. The commissioners then caused proper notice to be given that they would meet on the 6th day of September, at 1 o'clock, at Bolinger's schoolhouse, for the purpose of hearing objections to the classification of all the lands in said district. Notice of this meeting was served upon appellee, York, and he appeared for himself and others, and objected to the classification of the 80 acres in question, for the reason that 15 acres thereof were in another watershed and did not drain toward the old ditch. Other objections of appellee were interposed for other lands owned by him in the district. All of the objections of appellee and other landowners were considered and disposed of. The objection of appellee that 15 acres of the 80 in section 13 were not benefited by the proposed improvement of the old ditch was sustained by the commissioners, and said 15 acres were classified at zero. The appellee made no other or further objection to the classification of the lands against which the special assessment was levied.

Appellee's contention is that the drainage commissioners were without jurisdiction to include the 80 acres in section 13 without giving him notice and an opportunity to be heard. The county court sustained appellee's view, and refused judgment for the said special assessment. Appellee concedes that the district was both a de facto and a de jure district; but he denies the power of the drainage commissioners to exercise jurisdiction over the W. 1/2 of the S. W. 1/4 of section 13. Appellant contends that the objections interposed are, in effect, an attack upon the legality of the organization of the drainage district, which cannot be questioned except by a quo warranto proceeding.

This court has held in a number of cases that the legality...