Vandalia Levee & Drainage Dist. v. Vandalia R. Co.

• Decision Date: 08 December 1910
• Citation: 247 Ill. 114,93 N.E. 53
• Court: Illinois Supreme Court
• Parties: VANDALIA LEVEE & DRAINAGE DIST. v. VANDALIA R. CO. et al.

247 Ill. 114

93 N.E. 53

VANDALIA LEVEE & DRAINAGE DIST.

v.VANDALIA R. CO. et al.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 8, 1910.

Error to Fayette County Court; Michael O'Donnell, Judge.

Action by the Vandalia Levee & Drainage District against the Vandalia Railroad Company and others. From a judgment confirming drainage assessments against defendants' land, they bring error. Reversed and remanded.Brown & Burnside and W. P. Welker, for plaintiffs in error.

Albert & Matheny, for defendant in error.

COOKE, J.

This is a writ of error sued out to review a judgment of the county court of Fayette county confirming drainage assessments against lands of plaintiffs in error, the Vandalia Railroad Company, the Illinois Central Railroad Company, the town of Sefton, Moses Hutchins, Sarah J. Hutchins, Flora Dawdy, and Eva Webb, lying within the boundaries of the Vandalia Levee & Drainage District, in Fayette county.

The drainage district was organized in September, 1903, under the levee act (Hurd's Rev. St. 1905, c. 42), and an original assessment of benefits was confirmed by the county court against all the lands in the district. Moses Hutchins, one of the plaintiffs in error here, appealed from the judgment of confirmation to this court, and the judgment against his lands, amounting to $611.38, was reversed, because it included an assessment against those portions of said lands required, and in that proceeding sought to be taken, by the district for its levee, and the cause was remanded to the county court. Hutchins v. Vandalia Drainage District, 217 Ill. 561, 75 N. E. 354. No remanding order was ever filed in the county court, and no further action was taken in the original proceedings to obtain a valid assessment against the lands owned by Hutchins. Thereafter an additional assessment in the sum of $25,000 was spread against the lands in the district by the commissioners under an order of the county court, and as so spread was confirmed by the county court. The plaintiffs in error Moses Hutchins, Sarah J. Hutchins, Flora Dawdy, and Eva Webb sued out a writ of error from this court to review the proceedings under the petition for the second assessment, and the judgments against their lands were reversed, and the cause remanded to the county court, because the commissioners who spread the assessment owned land in the district, and because the assessment was in part levied to pay indebtedness already incurred. Vandalia Drainage District v. Hutchins, 234 Ill. 31, 84 N. E. 715.

On July 21, 1908, the remanding order of this court in the last-mentioned cause was filed in the county court, the cause was redocketed, the petition was amended, and proceedings were had which resulted in an order of the county court on August 22, 1908, directing an assessment of benefits, under the amended petition, against the lands of the four plaintiffs in error last above named, on the basis of a total assessment of $21,000 against all the lands in the district, instead of on the basis of a total assessment of $25,000, as originally ordered. This order did not specify whether the assessment should be spread by the commissioners or by a jury, and the court, on November 14, 1908, upon the petition of the commissioners of the district, entered a supplemental order directing that such assessment be made by a jury of 12 qualified persons impaneled and duly sworn as by the statute in such case made and provided. In the meanwhile, on September, 30, 1908, the commissioners had presented a petition to the county court for a third assessment of benefits, in the sum of $4,732.75, to repair certain breaks in the levee, to pay certain incidental expenses of the district, and to pay the amount awarded Moses Hutchins in a condemnation proceeding for land taken by the district for levee purposes, and also for an annual assessment of $2,400 for the purpose of making repairs and paying the incidental annual expenses of the district; and the court had, on November 5, 1908, granted the prayer of the petition and ordered that the assessments be made by a jury of 12 men, to be impaneled and selected according to law, and that any prior assessments of benefits against any lands in the district, which had not been confirmed because of illegality or irregularity in the making thereof, might be added to the amounts assessed against such lands in spreading the third assessment.

On November 14, 1908, the same day on which the court ordered that the second assessment against the lands of Moses Hutchins, Sarah J. Hutchins, Flora Dawdy, and Eva Webb be spread by a jury, the court, without notice to any of the landowners of the district, ordered a venire to issue for a jury, returnable November 17, 1908. The jury was, in obedience to the venire, summoned from the body of the county, was impaneled and sworn by the court without notice to and in the absence of plaintiffs in error, and proceeded to spread the second assessment against the lands of Moses Hutchins, Sarah J. Hutchins, Flora Dawdy, and Eva Webb in accordance with the order of August 22, 1908, and to spread the third assessment of $4,732.75 and the annual assessment of $2,400 against all the lands in the district in accordance with the order of November 5, 1908, and added to the assessments so spread against the lands of Moses Hutchins the first assessment of $611.38, judgment for which had been reversed by this court in Hutchins v. Vandalia Drainage District, supra. Plaintiffs in error filed their several objections to the assessments against their lands and to the assessment roll made and returned by the jury. The Vandalia Railroad Company and the Illinois Central Railroad Company filed their joint motion to transfer the proceedings to the circuit court, on the ground that the county judge of Fayette county was the owner of lands in the district. This motion was denied, but the county judge of Effingham county was called in to hear the cause. Upon the hearing the court overruled all legal objections, and the jury modified the assessment roll by striking out the assessments made against the lands of the Vandalia Railroad Company and the Illinois Central Railroad Company in spreading the third assessment of $4,732.75. The assessment roll as modified was confirmed by the court, and the plaintiffs in error by this writ of error seek to reverse the judgment of confirmation.

The proceedings now before us were had under the levee act as amended May 20, 1907 (Hurd's Rev. St. 1908, c. 42). Section 37 of the amended act provided that upon the hearing of a petition for an additional assessment the court might grant the prayer of the same, ‘and with like proceedings and notice as near as may be as in cases of original assessments of damages and benefits under this act,’ and that ‘when the right of way of the proposed ditches, drains, levees or other work within any district, has been released by the owners of the lands, or has been condemned according to law, over which said work or owrks are about to be located or when the owners of the lands in such district about to be assessed, agree thereto, the court may cause the assessment to be made by a jury, or may order the commissioners of said district to make the assessment of benefit or benefits and damages, in lieu of a jury.’ Acting under the authority conferred by this section of the act, the county court ordered that the assessments mentioned in the orders of August 22d and November 5th be made by a jury of 12 man, to be impaneled and selected according to...