Spring Creek Drainage Dist. v. Elgin, J.&E. Ry. Co.

• Decision Date: 06 April 1911
• Citation: Spring Creek Drainage Dist. v. Elgin, J.&E. Ry. Co., 249 Ill. 260, 94 N.E. 529 (Ill. 1911)
• Court: Illinois Supreme Court
• Parties: SPRING CREEK DRAINAGE DIST. v. ELGIN, J. & E. RY. CO. et al.

249 Ill. 260

94 N.E. 529

SPRING CREEK DRAINAGE DIST.

v.ELGIN, J. & E. RY. CO. et al.

Supreme Court of Illinois.

Feb. 25, 1911.

Rehearing Denied April 6, 1911.

Appeal from Will County Court; Arthur W. De Selm, Judge.

Proceedings by the Spring Creek Drainage District for the levy of additional assessments for the construction of certain drains in Will county.From a judgment confirming an assessment against lands of the Elgin, Joliet & Eastern Railway Company and others, they appeal.Reversed and remanded.Knapp & Campbell, O'Donnell, Donovan & Bray, and John R. Cochran, for appellantElgin, J. & E. Ry. Co.

O'Donnell, Donovan & Bray, for appellantMichigan Cent. R. Co.

Snapp & Heise, for appellant Chicago, R. I. & P. Ry. Co.

Dan R. Burke, for appellantCity of Joliet.

S. J. Drew, for appellee.

PER CURIAM.

This is an appeal by the Elgin, Joliet & Eastern Railway Company, the Michigan Central Railroad Company, the Chicago, Rock Island & Pacific Railway Company, and the city of Joliet from a judgment of the county court of Will county confirming a drainage assessment against lands of the appellant companies and the streets and alleys of the city within the boundaries of the Spring Creek Drainage District.The drainage district was organized under the levee act (chapter 42, Hurd'sRev. St. 1909) by an order of the county court of Will county, in March, 1903, to furnish to the lands in the district protection from the overflow waters of Spring creek, a small stream partly within and partly without the city of Joliet, and an original assessment of $165,000 against the lands in the district was confirmed by the county court on July 29, 1904.The plans provided for the deepening, widening, and straightening of Spring creek and the construction of concrete walls on the sides thereof, and the work was divided into two principal divisions, designated as the ‘main channel’ and the ‘north branch.’A contract for excavating the main channel, except those portions extending through the lands of the appellant railroad companies, was let to one Robert Shannon on September 17, 1907; the price fixed by the contract being 47cents per cubic yard.On the same day a contract was entered into with one Melvin Blain to construct the concrete walls on the sides of those portions of the main channel covered by the Shannon contract; the price to be paid therefor being $5.70 per cubic yard.Contracts were also made with each of the appellant railroad companies to excavate the ditch and construct the walls, according to the plans and specifications of the district, across the lands of such railroad company in partial satisfaction and payment of the assessment confirmed against its lands; the balance of the assessment against such lands being satisfied by the release by the railroad company of a right of way through its lands for the ditch and walls of the district.On February 15, 1909, the drainage district filed its petition in the county court of Will county for an additional assessment of $50,000 against the lands in the district, alleging therein that $56,323.63 was required to complete the main channel and for incidental expenses and $30,000 to complete the north branch, and that the resources of the district consisted of $28,323.63 cash, after deducting from the amount on hand the amount due contractors for work performed and real estate valued at $8,000.The subsequent proceedings, which, so far as material to the questions presented for our determination, will be hereinafter set out, resulted in a judgment confirming an additional assessment of $10,700 against lands of the Elgin, Joliet & Eastern Railway Company, $1,900 against lands of the Michigan Central Railroad Company, $1,474 against lands of the Chicago, Rock Island & Pacific Railway Company, and $3,200 against the streets and alleys of the city of Joliet within the district, and this appeal is prosecuted from that judgment.

Some of the questions presented upon this appeal relate to rulings of the court affecting all the appellants, while others relate to rulings affecting only one or a part of them.

First.The city of Joliet contends that the assessment against it on account of benefits to the streets and alleys within the district is not authorized by the statute, and is consequently void, and bases this contention entirely upon the case of City of Joliet v. Spring Creek Drainage District, 222 Ill. 441, 78 N. E. 836, wherein it was held, upon the authority of Drainage Com'rs v. Village of Cerro Gordo, 217 Ill. 488, 75 N. E. 516, that section 55 of the levee act (Laws 1885, p. 132), as it existed prior to the amendment of May 29, 1909(Laws 1909, p. 193), did not authorize an assessment against a city or village on account of benefits to streets and alleys.The city contends that it was there held that the failure of the levee act to provide any method by which to compel a city to levy and collect a tax to meet a drainage assessment was a fatal objection to an assessment against it on account of benefits to its streets and alleys.While some of the language used in the opinion in that case may be susceptible of the construction which the city has placed upon it, yet the ground upon which the decision was based clearly appears to be that section 55 of the levee act made no express provision for an assessment against a city on account of benefits to streets, and no such provision could be implied from the use of the words ‘public roads' or ‘township roads' in the section, because the section required the commissioners of highways to include the assessment against the public roads or township roads in their levy for road and bridge purposes, but made no provision for the levy and collection of taxes by a city or incorporated village with which to meet such assessment, and it was said: ‘Nowhere in section 55 of the levee act are streets of an incorporated village or city mentioned, and the provisions made by said section for the collection of the assessments made against ‘public roads' or ‘township roads,’ if it were otherwise doubtful whether they[streets of an incorporated city or village] were intended to be included in the act, make it clear there was no such intention.'On May 29, 1909, the Legislature amended said section 55 so that it now provides that when the proposed work ‘drains or levees or proposes to drain or levee, either in whole or in part, any public or corporate road or railroad, or the streets and alleys of any municipal corporation, so as to benefit any of such roads, * * * the commissioners shall apportion to the county, state, or free turnpike road, to the township, if a township road, to the company, if a corporate road or railroad, or to the municipal corporation in the case of streets and alleys, such proportion of the cost and expenses thereof as to private individuals, * * * and the said jury shall view and examine such road, railroad, streets and alleys, and shall proceed to assess the damages and benefits in like manner as to the lands of individuals.’Express authority to make an assessment against a city on account of benefits to its streets and alleys within the district is therefore conferred by the amended section, and the confirmation of such assessment amounts to a judgment against the city for the amount of the assessment.The authority to levy and collect a tax for the payment of this judgment is conferred upon the city by sections 2and3 of article 7 of the act to provide for the incorporation of cities and villages (Hurd'sRev. St. 1909, c. 24, §§ 89, 90), and the drainage district may, by mandamus, compel the city to exercise such authority.The fact that the levee act has not provided a method for the levy and collection of a tax to meet the drainage assessment, or has not designated the particular fund out of which the assessment shall be paid, is not a valid objection to the assessment against the city of Joliet.

Second.It is urged by appellants that the assessment was levied to pay past indebtedness and to replace funds illegally expended by the district.If any portion of the assessment was made to pay past indebtedness, the assessment to the extent that it was levied for that purpose was unauthorized and void.Winkelmann v. Drainage District, 170 Ill. 37, 48 N. E. 715;Ahrens v. Drainage District, 170 Ill. 262, 48 N. E. 971;Vandalia Drainage District v. Hutchins, 234 Ill. 31, 84 N. E. 715;Drainage Com'rs v. Kinney, 233 Ill. 67, 84 N. E. 34;Schafer v. Gerbers, 234 Ill. 468, 84 N. E. 1064.The record, however, fails to show that this assessment, or any portion thereof, was levied to pay indebtedness already incurred, and the order of the county court granting the prayer of the petition for the additional assessment contains a finding of fact ‘that the said sum of $50,000 asked for herein is for the payment of futher obligations and not for obligations previously incurred.’The Elgin, Joliet & Eastern Railway Company was the only one of the appellants that appeared at the hearing upon the petition, and the evidence taken at that hearing was not preserved by bill of exceptions, and is not in the record.It must therefore be presumed that the evidence heard by the court justified the finding that the assessment was for the payment of future obligations, and not for obligations previously incurred.

The exhibits attached to the petition filed February 15, 1909, purported to contain a statement of the receipts and disbursements of the district from the time of its organization to September 21, 1908, and the allegations of the petition with reference to the cash on hand and the estimate of the amount necessary to complete the main channel were based on that statement.Thereafter, on March 22, 1909, and before the hearing upon the petition, the district filed an amendment to the petition, consisting principally of an itemized statement of the receipts and disbursements from the organization of the district to February...