Vandalia Levee & Drainage Dist. v. Hutchins

• Decision Date: 23 April 1908
• Citation: 234 Ill. 31,84 N.E. 715
• Court: Illinois Supreme Court
• Parties: VANDALIA LEVEE & DRAINAGE DIST. v. HUTCHINS et al.

234 Ill. 31

84 N.E. 715

VANDALIA LEVEE & DRAINAGE DIST.

v.HUTCHINS et al.

Supreme Court of Illinois.

April 23, 1908.

Error to Fayette County Court; John S. Stonecipher, Judge.

Petition by the Vandalia Levee & Drainage District for an additional assessment to complete the work in the district, in which Moses Hutchins and others appeared and filed objections. There was a judgment allowing an assessment, and directing that it be spread by the commissioners, and the objectors bring error. Reversed and remanded.Brown & Burnside, for plaintiffs in error.

Albert & Matheny, for defendant in error.

The defendant in error is a drainage district organized under the levee act of 1879 (Hurd's Rev. St. 1905, p. 775, c. 42), and has been a going district since September, 1903. The original estimate of the cost of the improvement was $95,195, for which an assessment was returned amounting to $95,173.14, and of this amount $88,830.69 was confirmed by the court. Certain assessments have been reduced by the court, and certain of the original assessments are still in litigation. The record shows that $86,975.69 has been actually realized from the first assessment. Contracts were let for the construction work, and the last-named sum of money has already been expended, but some parts of the work are not yet completed. The dredging contract contains a provision that 20 per cent. of the contract price is to be retained by the drainage district as a guaranty until the completion of the work. This money, to the amount of about $3,700, has not been paid the contractors, as the work is not yet completed, but the total amount collected has already been spent for other purposes. In addition to expending this amount the commissioners have issued orders amounting to $4,500, outstanding and unpaid, and have contracted indebtedness for $1,835 for which no orders have been issued, making the total indebtedness over and above the amount collected some $10,035. March 6, 1907, the drainage commissioners filed a petition asking for an additional assessment of $35,000, stating that they needed $14,980 to complete the work-$4,850 for incidental costs yet to accrue, and, in round figures, $14,000 to pay indebtedness already accrued; that is, they showed they needed for past indebtedness and for future obligations substantially $34,000. The county court, after objections had been filed, allowed an assessment in the sum of $25,000, and directed that it be spread by the commissioners which was accordingly done. Plaintiffs in error filed objections to the confirmation of the commissioners' report, claiming that the commissioners were incompetent to spread the assessment, being landowners in the district; that more money was assessed than required to complete the improvement, and that the assessment was for payment of indebtedness already incurred. The objections were overruled, and the assessment confirmed, exceptions being duly preserved to this order. The case was brought to this court on writ of error for review.

CARTER, J. (after stating the facts as above).

The three drainage commissioners own, respectively, 900, 600, and 120 acres of land in the district, all of which, as we understand the record, was assessed both in the original and second assessments. Under a recent decision of this court these commissioners, being landowners in the district whose lands were subject to assessment, were incompetent to make such assessment. Drainage District v. Smith, 84 N. E. 376. The reasoning of the following authorities tends to support the conclusion reached in that case: Chase v. City of Evanston, 172 Ill. 403, 50 N. E. 241;Murr v. City of Naperville, 210 Ill. 371, 71 N. E. 380;Betts v. City of Naperville, 214 Ill. 380, 73 N. E. 752; Cooley's Const. Lim. (7th Ed.) pp. 592, 593; 1 Coke upon Littleton (Butler & Hargraves' notes) § 212.

Counsel for defendant in error cite and rely upon Scott v. People, 120 Ill. 129, 11 N. E. 408, and People v. Cooper, 139 Ill. 461, 29 N. E. 872. In both of these last-mentioned cases the farm drainage act of 1885 (Hurd's Rev. St. 1905, p. 799, c. 42) was under consideration, and not the levee act. In both of these cases the question under consideration was whether the commissioners were competent to make the classification of lands when they were annexed to the district under section 42 of this act. If the finding of the commissioners on the classification was not satisfactory, and appeal under the farm drainage act could have been taken to the county court, where the classification would have been passed upon by a jury. It has been held that, while the law secures a trial by jury upon an appeal, it is no...