Samuell v. Cooper

• Decision Date: 02 November 1891
• Citation: 139 Ill. 461,29 N.E. 872
• Parties: PEOPLE ex rel. SAMUELL v. COOPER et al.
• Court: Illinois Supreme Court

139 Ill. 461

29 N.E. 872

PEOPLE ex rel. SAMUELL

v.COOPER et al.

Supreme Court of Illinois.

Nov. 2, 1891.¹

Appeal from circuit court, Mason county; GEORGE W. HERDMAN, Judge.

Information in the nature of a quo warranto, on the relation of James M. Samuell, Sr., against Mark Cooper, Andreas Furrer, and William H. Buchanan. Defendants obtained judgment, and relator appeals. Affirmed.Geo. Hunt, Atty. Gen., T. N. Mehan, State's Atty., J. H. Sedgwick, and H. A. Wright for appellant.

E. A. Wallace and J. W. Pitman, for appellees.

BAILEY, J.

This was an information in the nature of a quo warranto, filed on the 5th day of April, 1889, in the circuit court of Mason county, on the relation of James M. Samuell, Sr., charging Mark Cooper, Andreas Furrer, and William H. Buchanan with having unlawfully usurped and intruded into, and with unlawfully holding and executing, the office and franchise of commissioners of the Central special drainage district in the county of Mason.

The information contains six counts. The first count alleges, in substance, that the defendants, on the 1st day of December, 1888, and on divers other days, within 18 months prior to the filing of said information, unlawfully held and executed, and still do hold and execute, the franchise and office of commissioners of said drainage district, and during all that time have unlawfully usurped and intruded into, and do so usurp and intrude into said franchise and office, contrary to the statute, etc.

The second count alleges that the defendants, on the 20th day of November, 1888, and on divers other days during said period of 18 months, have unlawfully acted within this state as a corporation, to-wit, as the corporation of the commissioners of said drainage district, without being legally incorporated, and still do unlawfully act as such corporation without being legally incorporated, contrary to the statute in such case made and provided, and to the damage of the people of the state of Illinois, and especially to the damage of the relator, in this: that he is a resident and tax-payer in the town of Sherman, in said county, owning and residing on his farm, to-wit, (describing a farm consisting of about 740 acres of land lying mostly within said town,) on which said farm said defendants, claiming to act as such corporation, did, on the 20th day of January, 1888, at said county, as commissioners of such corporation, levy a heavy assessment for constructing drains in said district, amounting to, to-wit, $800, and being in addition to a former assessment for said purpose, for, to-wit, $5,000, that they had as such commissioners then and previously imposed thereon, without corresponding benefits therefor, for which assessments installments become due and payable according to the terms thereof; and to obtain payment of which said defendants, on, to-wit, the 1st day of December, 1888, proceeded to collect from said farm, by levies, liens, prosecutions, and sales, and threaten to so collect the same in their assumed capacity of commissioners as aforesaid, notwithstanding the relator has received, and can expect to receive, little or no benefit therefor, and none commensurate with the amount thereof; also in that the defendants, assuming to act as such incorporated commissioners, have taken possession and appropriated to themselves a large ditch dug by the relator through and across a part of his said farm, at a cost to him of, to-wit, $2,500, and have not paid, or offered to pay, or in any manner compensate, him therefor, though he has often requested them so to do; also in that the defendants, assuming such authority as commissioners, have filled up and rendered useless another large ditch dug by relator across another portion of his said farm to an outlet to drain said farm, at a cost of, to-wit, $2,000, and have paid him nothing therefor, though often requested so to do; also in that the defendants, assuming authority as such commissioners, in the drainage of the relator's farm, have cut off from the north-west corner thereof, by a ditch 45 feet wide and 10 feet deep, about 7 acres of land, without giving or offering him any compensation therefor, though often requested so to do; also in that the defendants are otherwise harassing and damaging the relator in their assumed capacity as such corporate commissioners, unlawfully and with malicious intent, to-wit, in said county.

The third count alleges that said defendants, for said period of 18 months, have and still do intrude into, and usurp and hold, and unlawfully execute, the franchises and offices of commissioners of said drainage district, and so have and still do claim to act as said corporation, without being legally incorporated, and still have and still do use and exercise, as such corporation, powers not conferred by law, and so have and do claim to hold and exercise privileges improperly and without warrant of law, to-wit, the power and privilege of assessing the lands and property of relator and others over whom said defendants claim jurisdiction for that purpose, as in said district; of appropriating and taking exclusive possession of the ditches and property of the relator and others without giving or offering just compensation therefor; of taking the lands of the relator and others without such compensation; of filling up the ditches and injuring the drainage of said relator and others; of levying on and selling the lands and property of the relator and others to pay said illegal assessments, claiming jurisdiction as aforesaid for all said purposes only from and by pretended elections by persons owning lands within the claimed and alleged bounds of said alleged district, which persons are not, and then and there were not, citizens of the United States, entitled to vote under the constitution and laws of this state, but were females, foreigners, and minors, and which pretended elections were held in pursuance of section 54 of an act of the legislature of this state entitled ‘An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,’ approved June 27, 1885, which section of said act is, as relator and this information show, invalid, illegal, and contrary to the constitution of this state, as giving to those who are not electors in said state the right to vote for and elect drainage commissioners of special drainage districts, with large powers to assess, tax, condemn, and take away private property, such commissioners not necessarily being, under said enactment, citizens of the United States, or voters under said constitution, and said act is believed to be in many other respects unconstitutional and void; whereby said privileges and powers claimed and derived as aforesaid, and still claimed and exercised by the defendants, are and were improperly and without warrant of law so exercised by them, as coming from and being granted by and under the choice of unauthorized persons at said pretended elections held at said county on the third Tuesday of November in the years 1888, 1887, and 1886, and December 15, 1885, and at divers other times, under which elections said defendants claim to hold the office of commissioners as aforesaid, and as coming from and being granted by said unconstitutional law, and said elections held and conducted thereunder.

The fourth count alleges that the defendants, in said county, for the said space of 18 months then last past, had unlawfully executed said franchise and offices of commissioners of said alleged drainage district, and claim to hold and exercise the powers and privileges aforesaid over said lands, drains, and property of the relator without right, title, and due authority of law, in that the proceedings in and by which it was attempted to extend the jurisdiction of said alleged commissioners over said lands, drains, and property of said relator were illegal, and not according to the statute in such case made and provided, or the constitution of the state, and especially the petition to extend the area of the alleged original district so as to include said lands of the relator was not signed by the requisite number of adult property owners of the land lying in the district as proposed to be enlarged; neither did said petition set forth the boundaries or describe the tracts of land, nor contain the statements required by the drainage law, nor was notice of the presentation of said petition required by said law given and published as therein required, either as to form or time of notice. That the notice given required those interested to appear before the defendants as commissioners, they being interested parties, and having themselves gotten up said petition and secured the signers thereto. That upon such petition they made or attempted to make the annexation of said land, without the intervention of any other court or tribunal, well knowing that many of the signatures to said petition were fraudulent, and not those of adult bona fide land-owners, and that, if the petition had been freed from said fraudulent signatures, it would not have been signed by the number of land-owners required by said statute. That the proceedings of the defendants were otherwise irregular and void, in that they did not hold an adjourned meeting to hear objections, or themselves go on the land and make report, with plans and specifications, to such adjourned meetings, as required by section 52 of said act, but made the pretended annexation at the first meeting. That the proofs of publication, as required by said act, were not filed at or before said meeting. That the notices of said meeting were not posted or mailed as required by said act. That the order of annexation was informal, uncertain, and contrary to the statute. That the lands of the relator so attempted to be annexed are and were not of the class specified by said act, viz., wet and overflowed lands, needing drainage more than they already had, or...