Schwartz v. Comm'rs of Big Lake Special Drainage Dist

• Decision Date: 05 April 1923
• Docket Number: No. 14876.,14876.
• Parties: SCHWARTZ et al. v. COMMISSIONERS OF BIG LAKE SPECIAL DRAINAGE DIST.
• Court: Illinois Supreme Court

307 Ill. 209

138 N.E. 665

SCHWARTZ et al.

v.COMMISSIONERS OF BIG LAKE SPECIAL DRAINAGE DIST.

No. 14876.

Supreme Court of Illinois.

Feb. 21, 1923.

Rehearing Denied April 5, 1923.

Suit by Link Schwartz and others against the Commissioners of Big Lake Special Drainage District. From a decree for complainants, defendants appeal.

Affirmed.Appeal from Circuit Court, Jackson County; William N. Butler, judge.

R. J. Stephens, of Murphysboro, for appellants.

Otis F. Glenn, of Murphysboro, C. E. Feirich, of Carbondale, Fred G. Bierer and Herbert, Stewart & Herbert, all of Murphysboro, L. O. Whitnel, of East St. Louis, Craig & Kinzel, of Mattoon, and Martin & Glenn, of Murphysboro (George P. Ramsey, of Springfield, and Josiah Whitnel, of East St. Louis, of counsel), for appellees.

FARMER, J.

This appeal is prosecuted by the commissioners of the Big Lake special drainage district in Jackson county from a decree enjoining the collection of a special assessment levied by the commissioners, setting the same aside and enjoining the sale of bonds proposed to be issued against said assessment.

The drainage district was organized under the Farm Drainage Act in July, 1891. At the time of its organization it embraced 7,626 acres of land, which were classified and assessments levied and collected to do the work. The boundaries were afterwards extended to embrace 7,818 acres of additional land, but no new lands have been annexed since June, 1910. The lands were classified on a scale varying from 100 down to 20. The aggregate assessments levied and collected amounted to $16.12 per acre for the lands classified at 100. July 6, 1921, the commissioners certified to the county clerk an assessment against all the lands of the district of $118,532.78, which amounted to a charge against the lands classified at 100 of $13.24 per acre and $2.64 per acre on the lowest classification. A bill was filed at the January term, 1922, of the Jackson county circuit court by three landowners, on behalf of themselves and all others similarly situated, to enjoin the collection of the assessment. The bill alleged complainants had no notice or knowledge of the levy of the assessment until more than ten days after it was certified, filed, and extended on the original classification; that the assessment was excessive, unreasonable, illegal, invalid, and constituted a cloud on complainants' titles. The bill prayed the court so decree. We understand from the statements of counsel that the commissioners (hereafter called appellants) were negotiating for the sale of $99,000 of bonds to be issued against the assessment, and counsel who originally brought the suit, but who are not now appearing for any of the parties, did so for the purpose of obtaining a determination of the validity of the assessment and the validity of the bond issue. Appellants waived the issue and service of process, entered their appearance, filed their answer to parts of the bill, and demurred generally and specially to parts of it. Argument was set for January 28. Other counsel for landowners other than the original complainants sought leave to intervene as parties, and the cause was continued to the April term. An amended bill was filed by leave of court, to which the three original complainants and 41 other landowners were parties complainant. The amended bill need not be set out at large. The principal grounds upon which the right to relief was predicated were that the work for which the assessment was levied was not a part of or contemplated under the original plan for which the district was organized, but a large part of it was new and original work, unnecessary to carry out the purposes of the district; that the assessment was made without a new classification, without notice to the landowners, and they never learned of it until more than 10 days after the assessment had been made, certified, and filed; that they had no opportunity to appeal, and the assessment amounted to taking their property without due process of law, in violation of the Constitutions of this state and the United States. Appellants answered parts of the amended bill, and demurred specially and generally to parts of it. The demurrers were overruled, and appellants withdrew their answer and elected to abide by their demurrers. The chancellor entered a decree finding part of the work for which the assessment was made was not repair work, as contemplated by statute, but was new work, and the assessment roll was illegal and void. The assessment was set aside, and appellants were enjoined from attempting to collect it and from selling or transferring the bonds.

Big Lake special drainage district was organized 30 years ago under and is governed by the Farm Drainage Act (Hurd's Rev. St. 1921, c. 42, §§ 75-153c). The lands in the district remain as they were originally classified. Several assessments have been levied and paid. The special assessment here involved is called No. 7. Appellants claim the assessment was made pursuant to and is authorized by section 41 of the Farm Drainage Act. That section provides that after the work is completed the commissioners shall keep it in repair, and if they find, by reason of error in locating or constructing ditches, or from any other cause, the lands are not drained as contemplated, or some of them receive partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose, to the end that all the lands, so far as practicable, shall receive their proper and equal benefits, as contemplated when they were classified. For that purpose the commissioners are authorized to levy assessments. A brief reference to some other provisions of the Farm Drainage Act we believe advantageous to an understanding of the questions involved for decision.

Section 21 provides for the classification of the lands of the district and their assessment for benefits when the plans of the work have been determined upon. The classification, when established, remains the basis for the levy of taxes needed for the lawful and proper purposes of the district. Section 23 provides for a notice and hearing of objections to the classification, and section 24 authorizes an appeal from an order of the commissioners confirming the classification, within 10 days after the order is filed. Section 26 provides for the manner of spreading an assessment. Section 27, which was repealed in 1901 and re-enacted in 1915, provides for an appeal, within 10 days after the tax list has been deposited with the clerk of the district, to the county court, ‘but the appeal shall be upon the ground only that such tax is a greater amount than the benefits to accrue to the land in question by the proposed drainage.’ We have above set out the provisions of section 41 material to this case.

The scheme and plan of the Farm Drainage Act appear to contemplate that when the lands are classified, assessed, and the work completed, the classification as originally made shall remain the basis for such future assessments as are needed to keep the work in repair so that it will accomplish the results contemplated in the organization of the district. Prior to 1901 and since 1915 no notice was or is required to be given the landowners of an assessment, based on the original classification, to keep the work in repair, but the commissioners are authorized to make, certify, and file a tax levy for repair work without notice, and the only remedy of an objecting landowner is an appeal to the county court within 10 days after the tax list is filed, where he may have a court review on the question whether his land has been taxed more than its benefits by the proposed work. People v. Hulin, 237 Ill. 122, 86 N. E. 666;People v. Bradshaw, 303 Ill. 558, 136 N. E. 466. After the repeal of section 27 in 1901, and before its re-enactment in 1915, it was held that the landowner might, on application for judgment, have a hearing on the question whether the assessment exceeded the benefits, because the statute during that period afforded him no other opportunity to be heard on that question. People v. Welch, 252 Ill. 167, 96 N. E. 991;People v. Whitesell, 262 Ill. 387, 104 N. E. 688.

If the work for which the present assessment was levied was properly repair work authorized by section 41, it might lawfully be made on the basis of the original classification, without notice to the landowners, but appellees charge that a great part of it was not for repair work, but...