People ex rel. Wheeler v. Harvey
| Decision Date | 19 March 1947 |
| Docket Number | 29844.,Nos. 29843,s. 29843 |
| Parties | PEOPLE ex rel. WHEELER, County Collector, v. HARVEY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeals from Wayne County Court; Arthur W. Elliott, Judge.
Suit by the People, on the relation of D. V. Wheeler, County Collector, against Owen H. Harvey and another to recover delinquent installments of drainage assessment levied by the Skillet Fork River Outlet Union Drainage District. From two judgments of the county court sustaining objections to the application for judgment and order of sale against the lands belonging to defendants, the relator appeals.
Reversed and remanded with directions.
H. S. Burgess, State's Atty., of Fairfield, Kern & Pearce, of Carmi, and Craig & Craig, of Mattoon, for appellant.
Mills, Umfleet & Mills, of Fairfield, and Dobbins, Dobbins & Fraker, of Champaign, for appellees.
This is a consolidated appeal from two judgments of the county court of Wayne county sustaining objections to an application for judgment and order of sale against certain lands belonging to the appellees, Owen H. Harvey and Mary Catherine Morris, respectively, for delinquent installments of a drainage assessment levied by the Skillet Fork River Outlet Union Drainage District. By agreement of the parties a single transcript of the record was filed, the appeals were consolidated in this court, were argued together as one case, and will be so considered and disposed of by one opinion.
The facts in the record, stipulated and proved, which we regard as determinative of the rights of the parties, may be summarized as follows: April 24, 1925, the county court of Wayne county entered an order organizing the Skillet Fork River Outlet Union Drainage District, comprising lands in Wayne, Hamilton and White counties, as an outlet drainage district under section 65a of the Levee Act (Ill.Rev.Stat.1945, chap. 42, par. 65). This judgment ordered the construction within the district of a drainage improvement, consisting of deepening, widening and straightening the channel of the Skillet Fork river from its outlet into the Little Wabash river in White county up-stream to a point where the Skillet Fork river is crossed by the tracks of the Southern railroad in Wayne county. The course of the Skillet Fork river, in its natural state, as it then existed between these two points, was very winding and tortuous, having a total length, following the sinuosities of its channel, of more than 54 miles. The work ordered constructed reduced this length to 34.67 miles. The plans for the work provided for the excavation of approximately 4,539,438.9 cubic yards of earth, the building of five bridges, and the removal of approximately 6960 cubic yards of rock from the challel of the river. channel of the river. jury, the county court confirmed a special assessment, in the total sum of $389,803.39, to pay the cost of the work ordered to be constructed, and made the same payable in fifteen annual installments, the first installment falling due on January 1, 1931, and the last on January 1, 1945. On June 12, 1926, the commissioners of the district adopted a resolution authorizing bonds of the district, in the sum of $320,000, to be issued against the installments of said assessment, and in a short time thereafter said bonds were duly issued and sold.
A contract for all excavating of earth in connection with the improvement was let on August 27, 1926, at the price of 7 1/2 cents per cubic yard. Contracts were also made at later dates for the construction of three of the bridges provided for by the plans. The construction of the improvement was never completed, and no construction work whatever was performed in the district after January, 1931, for the reason that the funds of the district had become exhausted and the commissioners had no money with which to continue the work. No earth was ever excavated between station 1492 plus 00 and 1830 plus 59, which latter station was the upper terminus of the proposed improvement at the tracks of the Southern railroad in Wayne county. The distance between these stations was approximately 6.41 miles. There was no clearing of the right of way between these stations and no clearing for the first four miles at the lower end of the ditch. Two of the five bridges provided for by the plans were never constructed, and the 6960 cubic yards of rock required by the plans to be removed from the channel of the Skillet Fork river were never excavated. The lands of appellee Mary Catherine Morris are located just a short distance below station 1492 where the excavation work was stopped. The lands of appellee Owen H. Harvey lie adjacent to the river about three quarters of a mile below or downstream from station 1830 plus 59.
During the time the construction work was being performed in the district, the commissioners made and filed a number of reports, showing the amount of money by them collected and the manner in which the same had been expended, which reports were approved by the court, after notice duly given to the landowners of the district, as required by law, of the date fixed for the hearing thereof and of all objections thereto.
Prior to January 21, 1935, $3000 of the bonds issued in 1926 had been paid in full and there remained outstanding and unpaid of said issue, bonds in the aggregate amount of $318,000, upon which there was accrued and unpaid interest in the sum of $42,300, making a total amount of outstanding bonds and accrued interest thereon, in the sum of $360,300. The holders of said bonds, in the face amount of $309,000, agreed to surrender their bonds for 55,383 cents on each dollar, and on January 21, 1935, the commissioners of the district filed in the office of the clerk of the county court of Wayne county a petition, asking the court to extend the time of payment of the unpaid portion of the assessment and installments thereof, levied in 1926, and to refund the outstanding bonds of the district issued in anticipaton of the collection of the assessment. Accompanying said petition there was filed a proposed draft of a revised assessment roll, reducing the unpaid assessment from $356,277.49 to $200,670.36, and dividing the reduced assessment into thirty annual installments, maturing on the first days of January in the years 1938 to 1967, both inclusive. After due hearing, upon proper notice thereof given to the landowners in accordance with section 38a of the Levee Act (Ill.Rev.Stat.1945, chap. 42, par. 38a), the court, on February 4, 1935, entered an order reducing and extending the assessment and confirming and adopting the revised assessment roll filed with the petition as the assessment roll of the district. The court order also authorized the issuance of refunding bonds in the amount of $178,500, to be delivered in exchange for and redemption of the old outstanding bonds of the district. The order gave the landowners the opportunity until February 18, 1935, to pay the amount of the installments against their property in cash, and directed the commissioners to report to the court any and all such payments. March 28, 1935, the commissioners reported to the court the total amount of the extended assessments paid by the landowners, and on that date the court entered a supplementary order, directing that said amount be applied on the payment and redemption of the original outstanding bonds, on the settlement basis agreed to by the holders of such bonds, thus reducing the aggregate amount of refunding bonds necessary to $163,000, instead of $178,500, and authorizing and directing that refunding bonds of the district in the aggregate sum of $163,000, instead of $178,500, be issued and delivered as directed. These refunding bonds were duly issued by the commissioners, in accordance with the directions of the court, and on December 29, 1936, the entire issue of $163,000 of refunding bonds was delivered to the Reconstruction Finance Corporation in exchange for the $318,000, face amount, of the original outstanding bonds of the district, which had been therefore acquired by said corporation. Of these refunding bonds, $3000 have since been retired, and the remainder, in the face amount of $160,000, is owned and held by the Reconstruction Finance Corporation, and, together with the accrued interest thereon amounting at the time of the trial to $20,600, has never been paid.
March 19, 1943, the treasurer of the drainage district filed with the county collector of Wayne county a return of the delinquent assessments against the lands located in Wayne county which are within the district. Included in this return were the unpaid installments against the lands of appellees becoming due on January 1, of the years 1938 to 1943, both inclusive, as levied and extended in the revised assessment roll. The county collector included the same in his return on the tax judgment, redemption and forfeiture docket, and on October 4, 1943, made application to the county court for judgment and order of sale against the lands.
The objections originally filed by the landowners were based upon the following grounds: (1) That the improvement for which the assessment was levied was never constructed; (2) that the work done by the district constitutes another and essentially different improvement from that called for by the order of court and for which the assessment was levied; (3) that the work actually done constitutes a substantial and material deviation from the plans for the drainage improvement as approved by the court, and instead of benefiting the lands of the district, including the lands of the objections, has actually damaged such lands; (4) that it would now be impossible to complete the improvement without expenditure of an amount which, together with prior expenditures, would greatly exceed the benefits which would thereby result to the lands in the district; and (5) that the present cost of constructing an adequate drainage outlet for the...
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