People ex rel. Zilm v. Carr

• Decision Date: 16 October 1914
• Citation: 106 N.E. 801,265 Ill. 220
• Parties: PEOPLE ex rel. ZILM, County Collector, v. CARR et al.
• Court: Illinois Supreme Court

265 Ill. 220

106 N.E. 801

PEOPLE ex rel. ZILM, County Collector,

v.CARR et al.

Supreme Court of Illinois.

October 16, 1914.

Appeal from La Salle County Court; A. T. Lardin, Judge.

Action by the People, on the relation of Edward Zilm, County Collector, against Levi Carr and others. Judgment for relator, and defendants appeal. Reversed and remanded, with directions.

L. W. Brewer and Lester H. Strawn, both of Ottawa, for appellants.

Butters & Armstrong and Browne & Wiley, all of Ottawa, and Craig & Craig, of Mattoon, for appellee.

COOKE, C. J.

The county collector of La Salle county applied to the county court of that county, at the May, 1913, term thereof, for judgment and an order of sale against lands of appellants located within drainage district No. 1 of the town of Ophir, La Salle county, for alleged delinquent drainage assessments. Appellants appeared and interposed numerous objections, only one of which need here be noticed, viz., that no resolution ordering any amount of money whatever to be raised by special assessment upon the lands of the district was passed or adopted by the drainage commissioners prior to letting the contract for the construction of the work of the district or prior to the completion of such work. The court overruled the objections and rendered judgment against the lands for the alleged delinquent assessments. This appeal has been prosecuted from that judgment.

The drainage district in question was organized under the Farm Drainage Act; the order declaring the district fully organized having been entered on January 25, 1905. On March 1, 1905, commissioners were elected. On June 17, 1905, these commissioners completed a classification of the lands in the district and gave notice of a meeting to be held within the district on July 10, 1905, to hear objections to the classification. Various changes were made in the classification of lands at that meeting and a modified classification roll was made and adopted. Certain landowners, not including any of the appellants here, appealed to the county court from the order of the commissioners adopting and confirming the modified classification. A jury impaneled in the county court upon that appeal made a new classification of all the lands in the district. Thereafter the commissioners advertised for bids for constructing the work of the district, and on August 11, 1905, a contract was let for the construction of the work; the contract price being about $27,000. Afterwards the commissioners spread an assessment of $29,000, divided into three installments, two of $10,000 each and one of $9,000, against the lands in the district, using the classification as made by the jury in the county court as a basis for spreading the assessment. Numerous landowners paid the first installment of the assessment spread against their lands. Appellants refused to pay this installment and successfully resisted an application made by the county collector for judgment and an order of sale against their lands; the objection made and sustained being that the commissioners, in spreading the assessment, had erroneously followed the classification made by the jury in the county court instead of the modified classification made by the commissioners on July 10, 1905. Carr v. People, 224 Ill. 160, 79 N. E. 648. After the decision was rendered in the case just referred to, the commissioners again attempted to spread the assessment of $29,000 against the lands of the district in accordance with the modified classification adopted by them on July 10, 1905. Appellants refused to pay the assessment and successfully resisted the application of the county collector for judgment and order of sale against their lands; the grounds upon which judgment was refused being set out in the opinion filed in People v. Carr, 231 Ill. 502, 83 N. E. 269. In the meantime the work of the district had been completed and all of the landowners except appellants had paid the assessments spread against their lands. No further action was taken by the commissioners with reference to making or spreading an assessment against appellants' lands until February 8, 1913, when the commissioners met within the district and adopted a resolution in which, among other things, it was recited: That at the meeting of July 10, 1905, above mentioned, after the land had been classified, the following resolution was adopted:

‘Resolved by the drainage commissioners of drainage district No. 1 of the town of Ophir, La Salle county, state of Illinois, that it be, and it is hereby, ordered that the amount of $29,000 be raised by special assessment upon the lands of the district aforesaid as the same may be necessary, and that such amount be and is apportioned among the several tracts in the name of the owner thereof, when known, according to acres of each and its figure of classification on the graduated scale, so that each tract may bear its equal burden in proportion to benefits.’

That said resolution was inadvertently mislaid and temporarily lost and was not filed at said meeting but was afterwards found and was filed with the clerk of the commissioners on August 10, 1905, and that it was consequently inadvertently omitted from the minutes of the meeting held on July 10, 1905. That a meeting of the commissioners was held on August 10, 1905, to open bids for constructing the work of the district and was adjourned to August 11, 1905, when the bid of G. A. Williams was accepted and a contract entered into with him for constructing the work of the district, and that at this meeting it was ordered that the assessment of $29,000 be divided into three installments, the first to be for the sum of $10,000 and to be due August 10, 1905, the second to be for the sum of $10,000 and to be due February 1, 1906, and the third to be for the sum of $9,000 and to be due June 1, 1906. The resolution, after making other recitals not necessary to be noticed, directed the clerk of the district to write up and restore the minutes of the meetings of August 10 and 11, 1905, in order to show what was transacted at those meetings as recited in the resolution. The meeting of July 10, 1905, which was called for the purpose of considering objections to the classification, and the meeting of March 1, 1905, which was held for the purpose of electing commissioners, were the only meetings prior to that of February 8, 1913, held within the boundaries of the drainage district. The meetings of August 10 and 11, 1905, were not held within the district, but were held at the office of the attorney for the commissioners in the city of Ottawa. The minutes of the meeting of July 10, 1905, as the same appear in the drainage record, do not show the presentation or adoption of any resolution. From a file mark on the resolution above set out it appears that it was filed with the clerk of the commissioners on August 10, 1905, and as so filed it was signed by all the commissioners. In accordance with the directions contained in the resolution of February 8, 1913, the clerk thereafter wrote into the drainage record the minutes of the meetings of August 10 and 11, 1905, showing the proceedings recited in the resolution to have been taken at those meetings, but no change in or addition to the record of the minutes of the meeting of July 10, 1905, was made by the clerk. The commissioners then spread the proportionate part of an assessment of $29,000 against appellants' lands, based on the classification as modified by them at the meeting of July 10, 1905, and, appellants having refused to pay the assessments against their lands, the assessments were returned as delinquent and the application first above mentioned for judgment and an order of sale was made to the county court. This application was based upon a return made by the treasurer of the drainage district showing that the assessments were spread against appellants' lands on February 8, 1913, by virtue of a levy made July 10, 1905.

Appellee contends that the resolution ordering $29,000 to be raised by special assessment upon the lands of the district was adopted by the commissioners at the meeting held July 10, 1905, and in support of this contention relies entirely upon the record of the meeting of February 8, 1913, showing the adoption at that meeting of the resolution which recites that a levy of $29,000 was made at the meeting held July 10, 1905, and upon the record of the meeting of August 10, 1905, which was written up by the clerk after February 8, 1913, and which also refers to the adoption of a resolution on July 10, 1905, levying the sum of $29,000. He does not contend that the resolution was passed at any other time or that any other meeting was ever held within the district at which such a resolution could have been adopted.

In support of their objection that no such resolution was adopted prior to letting the contract for the work or prior to the completion of the work, appellants offered in evidence all that portion of the drainage record which had been written up prior to February 8, 1913, including the minutes of the meeting of July 10, 1905, and it appears therefrom that no record was made of the adoption of the resolution in question at the meeting of July 10, 1905, or of its adoption at any other time. Appellants also called numerous witnesses to show that no such resolution was, in fact, adopted at the meeting of July 10, 1905. Fred T. Davis, who was one of the commissioners on July 10, 1905, but who had ceased to hold such office before February 8, 1913, testified that he attended the meeting of July 10, 1905, and that no such resolution was adopted while he was present, but that later (and he thought it was when the bids were opened, on August 10, 1905) the three commissioners signed such a resolution at the office of their attorney in Ottawa. J. E. Hill, who was town clerk and ex officio clerk of the commissioners on July 10, 1905, and who had continued to hold such office...