28 Ill. App. 17 | Ill. App. Ct. | 1888
The only complaint in the petition was as to the failure of the commissioners to classify the two sections 19 and one other tract, and for classifying one tract not in the district. The only complaint made here in appellant’s brief, is the failure to classify said two sections. The complaint as to the other tracts appears for some reason to be abandoned.
It pretty clearly appears from the evidence that on account of the change of the route of the ditch after the two sections had been taken into the district they would not be at all benefited by the drainage. The appellant was a promoter and adviser of the change made by the commissioners. According- to the statute the two sections should have been classified, though if not benefited it might have been at zero. If they had been classified at zero no tax could have been assessed against them and the appellant could not have been benefited by any supposed reduction of his own tax by reason of the tivo sections having been classified. It is a mere technical complaint having no merit.
Sec. 15 of the Drainage Act of 1885 (see Session L.’1885, p. 82) provides that a petitioner shall be conclusively presumed to accept “ the provisions of the act as to assessments, benefits and damages.” He is estopped from complaining in this proceeding that his assessment is not just and from seeking to quash the proceedings for that reason.
The Drainage Act, Sec. 78, provides “ that the acts and proceedings done and the rights acquired (under this act), if in substantial compliance to law, shall not be held to be void from merely technical informality of proceedings, where no substantial rights of persons or property are adversely affected.”
It will be seen from what we have said that “ no substantial right of appellant was adversely affected.” He was not injured by the failure to classify the sections in question to the extent of a dollar. The same section also provides that the Drainage Act shall be liberally construed to effect the object designed by the legislature. See opinion of this court in Lees v. Drainage Commissioners, 24 Ill. App. 487, affirmed in the Supreme Court by opinion filed at Ottawa May 9,1887.
The writ of certiorari is not a writ of right. It is within the sound discretion of the court whether it will be allowed or not, and oral evidence may be heard to enlighten the court’s conscience on that point. Ilyslop et al. v. Finch, 99 Ill. 171.
The record shows that appellant delayed his action in suing out his writ from Bov ember 17, 1886, when the assessment was made, to March 17, 1887. The evidence shows that a greater proportion of the assessment on lands in the district had been paid and contract let for the work, and a great amount of money collected and paid out. But as the assessments were due before the writ was sued out the presumption would be that it was paid. Many other parties are deeply interested in this record and it would, no doubt, be a great damage to many to have the record quashed.
We think the court should not have exercised its discretion in allowing the writ, which it afterward quashed and cured the error. The appellant should have taken immediate steps. He waited too long. Board of Supervisors v. McCoon, 109 Ill. 142.
What has been said sufficiently disposes of all the points raised by appiellant. One other question is raised in regard to the record failing to show notice prior to the confirmation of the classification under Sec. 28 of the act. This point, so far as we can see, was not made in the courtbelow, being made here for the first time. It appears also that the record was made up by agreement.
It was agreed “ that wherein the proceedings of the commissioners are purported to be set out by the petitioner in his petition they were correct, and that so far as the defendant’s answer purported to set out the proceedings of the commissioners, the same were correct.”
The case was then tried on the proceedings as set out in the petition and answer. It did not purport to contain all the proceedings and papers and only so much of the record as was necessary to raise the question of the omission to classify the two sections was brought to the attention of the court. No point of -want of notice was suggested or claimed in the petition and no record was thought necessary to be produced in the answer to show notice.
It would be talcing an unfair advantage of the appellees to allow that question to be raised for the first time in this court.
Besides this, we think this petition was made too late.
The judgment of the court below is therefore affirmed.
Judgment affirmed.