Sanner v. Union Drainage Dist. No. 1

• Citation: 51 N.E. 857,175 Ill. 575
• Parties: SANNER et al. v. UNION DRAINAGE DIST. NO. 1 et al.
• Decision Date: 24 October 1898
• Court: Illinois Supreme Court

175 Ill. 575

51 N.E. 857

SANNER et al.

v.UNION DRAINAGE DIST. NO. 1 et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Third district.

Petition for certiorari by Edward B. Sanner and other against Union Drainage District No. 1 and others to determine the validity of the organization of such district. A judgment dismissing the petition was affirmed in he appellate court (64 Ill. App. 62), and petitioners appeal. Reversed.

Moulton, Chafee & Headen, for appellants.

Hamlin & Kelley, for appellees.

PHILLIPS, J.

On October 19, 1893, a petition was filed with the town clerk of Penn township, Shelby county, Ill., addressed to the drainage commissioners of the town of Penn, in Shelby county, and of the town of Milan, in Macon county, state of Illinois, reciting that about 320 acres of land in Macon county and about 1,310 acres in Shelby county had theretofore been connected by ditches, which formed a continuous line of branches draining through the same outlet, constructed by the voluntary action of the owners, and setting forth the petitioners and landowners in the proposed district, and that repairs and improvements are necessary, but cannot be made by voluntary agreement, and praying for the organization of a union drainage district, with boundaries embracing the lands in the petition described. This petition being filed with the town clerk, he complied with the provisions of the statute by selecting three commissioners for said district from the commissioners of highways of the two towns, taking a part from each town, and notified them of their selection, and when they should meet. At a meeting on the 31st of October, 1893, in accordance with the notification by the town clerk, the commissioners entered an order, in which it was recited that they had examined the petition, together with all the papers in the case, and, having heard the testimony of witnesses duly sworn according to law, together with statements of all interested persons appearing, found the petition contained the signatures of three adult persons owning land in the proposed district, and the affidavits of two credible signers of the petition in support thereof; that they further found the land mentioned in said petition required a combined system of drainage, and that it was then connected by ditches forming a continuous line and branches through the same outlet, and was so connected by voluntary action of the owners; that a large amount of drainage, repairs, and improvements was necessary, and that the organization of a district would be beneficial; and found for the petitioners, and granted the prayer of the petition. This order was made in accordance with the provisions of paragraph 87 of the drainage act (Hurd's Rev. St. 1889, p. 563), but also went further, and granted the prayer of the petition. At that meeting the commissioners adjourned until November 9, 1893, at which time they reported that they had been upon the lands, and had personally examined the same; that they had excluded certain lands which were included in the petition for the proposed district, and included certain lands which were not included in the petition, and defined the boundaries and classified the lands. They subsequently appointed an engineer, who made a report, which was received and accepted, and filed with the town clerk. Notice was given that the commissioners had made an assessment for benefits and classified the land in the district on a graduated scale, and had made an order, under paragraph 89 of the drainage act, to organize the district, making a map thereof showing the boundaries, which map was duly filed. Thereupon E. B. Sanner, Jacob Sanner, and F. M. Sanders appealed to three supervisors. Three supervisors were summoned from Shelby county to hear the appeal. Objection being made that one of the supervisors should have been called from Macon county, the supervisors were of the opinion the point was well taken, and declined to consider the appeal for that reason. Thereupon the clerk summoned two supervisors from Shelby county and one from Macon county to hear the appeal. These three met, when one of the appellants objected, because they had not been convened in time; and this objection was held good, and the board dissolved. The appellants filed in the circuit court of Shelby county their petition for a common-law writ of certiorari to bring before the court the record and proceedings, and upon a hearing the petition was dismissed, and the writ quashed. Appellants prosecuted an appeal to the appellate court for the Third district, where the judgment of the circuit court was affirmed. This appeal is prosecuted from that judgment of affirmance.

Counsel say, in their brief, ‘We simply seek to have this court examine and pass upon the acts of this corporation after October 31st, when the organization was had.’ By the provisions of paragraph 87 of the drainage act the commissioners must meet at the time and place mentioned in the notice, and the clerk shall lay before them the petition and papers in the case, and they must ascertain whether the petition contains the signatures of three adult persons owning land in the district, and whether they are the owners of more than one-third of the land in the district. Under the findings to be made under that section they only determine with reference to whether the petition has been signed as required, and determine, in fact, with reference to the material statements therein, having power to administer oaths and examine witnesses and decide controverted questions. They must make a statement of thier findings, to be filed with the papers in the case under the above paragraph. In their meeting of October 31st the commissioners made all these findings, and then added, ‘We therefore find for said petitioners, and grant the prayer of said petition, and order an adjournment until November 9, 1893.’ The contention of appellants is that these proceedings organized the district legally, and subsequent proceedings, it is urged, are illegal and void. By paragraph 88 of the drainage act, if the commissioners shall find in favor of the petitioners, as provided in paragraph 87, they shall adjourn their meeting, and in the meantime go upon the lands, and personally examine the same. By the provisions of paragraph 89, at such an adjourned meeting they shall enter an order of record organizing the drainage district. The commissioners had no power to organize a drainage district at the first meeting, and the effect of the order entered by them did not constitute the organization of the district.

It appears that the petition sets forth the names of the owners of land embraced in the proposed drainage district, and their post-office addresses, so far as known. The names of 15 landowners are therein given. Notice was duly posted, in which a copy of the petition was inserted, showing that it would be heard on the 31st day of October, 1893. On that day the commissioners, after finding the facts as to the sufficiency of the petition under the statute, and entering an order to that effect, adjourned to November 9th, at 11 o'clock a. m. Of the 15 landowners whose names are given in the petition on is the estate of C. Barber, deceased. On the organization of the district on the 9th day of November certain lands of J. S. Crawford were included in the district, but he was not named as a lot or land owner. Certain lands of George W. Waite were excluded, and certain other lands included other than those mentioned in the petition, under the order organizing the district. Certain lands of Walter Parks were included in the district, but he was...