252 Ill. 142 | Ill. | 1911
delivered the opinion of the court:
First—Section g of the Levee act (Hurd’s Stat. igog, chap. 42, p. Bgg,) requires the commissioners, immediately after their appointment, to examine all the lands proposed to be drained or protected, and in case the prayer of the petition is for the purpose of repairing and maintaining a levee or levees, ditch or ditches, theretofore constructed under any law of this State, to report to the court what lands will be benefited thereby and the probable aggregate amount of such benefits. The commissioners, in accordance with the mandate of the statute, reported the probable aggregate amount of benefits to the lands of the district from the repairing and maintaining of the levee or levees, ditch or ditches, theretofore constructed was the sum of $500,000, and it is said that finding is binding upon the district, and that no greater sum than $500,000 can be raised in the district by special assessment with which to pay for improvements, regardless of the amount of actual benefits which would accrue to the lands of the district from the improvement, and as it appears that $472,000 has already been raised by special assessment in the district, this assessment is excessive by $132,000 and that it cannot be sustained. The report required by section 9 is a preliminary report and is merely advisory to the court, and is not, we think, conclusive of the amount that may be raised by special assessment in the district. In Michigan Central Railroad Co. v. Spring Creek Drainage District, 215 Ill. 501, in speaking of the legal effect of the report required to be made under section 9, it was said (p. 504) : “This report is in no way conclusive as to any of the matters contained in it.” We think this must necessarily be true, as at the time the report is made the district is not organized and may never be organized, and the report as to what lands will be benefited and the probable aggregate amount of such bene•fits is made by the commissioners to the court in order that the court may be advised upon the question whether the district should be organized, and is not made for the purpose of fixing benefits as a basis for future assessments. The only limitation upon the amount that may be raised by special assessment against the lands of the district found in the statute or constitution is that the amount raised must not exceed the benefits, and that they must be spread in such a way that no land will be burdened with a greater amount than its proportionate share of the cost of the improvement. It is clear that by clause 3 of paragraph 7 of section 9 of the Levee act, by virtue of which the finding was made by the commissioners, the assessment is limited by the probable aggregate amount of benefits which will accrue to the lands of the district from the repairing or completion of work theretofore constructed under any law of this State, (Blake v. People, 109 Ill. 504,) and must be held to apply here- only to the benefits to accrue to the lands of the district by the repairing or completion of the levee or levees constructed by -the old district to. confine the waters of the Sny Carte. The district, however, as organized was not limited to that improvement, but it takes its life and chartered powers from the statute, (People v. Lease, 248 Ill. 187,) and it is not only authorized but is required to furnish drainage to the entire district. (Binder v. Langhorst, 234 Ill. 583.) In order to perform its full duty to all the lands in the district it may be required to construct improvements not contemplated at the time the preliminary report was made, before the district was fonned. To hold that a district is concluded as to the amount which it can lawfully raise by special assessment by the amount found as the probable aggregate amount of benefits by the commissioners in the preliminary report required to be made by section 9, would be in many instances to so tie the hands of the district as to render its organization futile and abortive. This was an additional assessment made to pay for work not contemplated' at the time the district was organized, and is not controlled by the decision in Morgan Creek Drainage District v. Hawley, 240 Ill. 123.' Our conclusion is that the district was not limited in the amount it might raise by special assessment by the finding of the commissioners that the probable aggregate amount of the benefits was $500,000.
Second—It is next contended that the commissioners were powerless to file a petition to levy this assessment, and that in no event could it be levied except upon the petition of a majority of the land owners representing one-third in area of the lands of the district.
Section 37 of the Levee act, in part, is as follows: “And assessments from time to time may be levied on the land within any district when it shall appear to the court that the previous assessment or assessments have been expended or are inadequate to complete such work, or are necessary for maintenance or repair, or when it shall become necessary for the construction of additional work, or the completion of any work already commenced within drainage district to insure the protection or drainage of lands in said district, under the direction and order oy court, or to pay obligations incurred for the currer/ penses of said district or in the keeping in repair and protection of the work of such district, on a petition of a majority of the land owners within said district who are of lawful age and represent at least one-third in area of such lands, or on the petition-of the commissioners, accompanied by an itemized statement of accounts made by the commissioners under oath, showing the moneys receiyed by the district and the manner in which they have been expended, together with the plats and profiles of such additional work and estimated cost of the same.”
It is clear from the language of said section that it was the intention of the legislature that an additional assessment or assessments might be levied upon the lands of a drainage district organized under the Levee act, upon either the petition of a majority of the land owners representing one-third of the lands of the district or the commissioners, when it was made to appear to the court that the moneys theretofore raised by assessment had been expended or were inadequate o-r were not sufficient for maintenance or repairs, or where it was necessary that more money be raised to pay for additional work or for the completion of work already commenced, and unless it can be said that the legislature is powerless to authorize an additional assessment or assessments to be levied upon the petition of the commissioners, this contention of the plaintiffs in error cannot be sustained. In Fountain Head Drainage District v. Wright, 228 Ill. 208, the assessment was levied upon the petition of the commissioners and approved, and in Binder. v. Langhorst, supra, it was held in a proper case the commissioners might be coerced by mandmms to levy an additional assessment "or assessments with which to furnish complete drainage to the district. Since the amendment to the constitution in 1878 it rests within the discretion of legislature to determine whether additional assessments be levied upon the initiative of the commissioners or nd owners of the district. (Blake v. People, supra; Kilgour v. Drainage Comrs. 111 Ill. 342; Huston v. Clark, 112 id. 344; Owners of Lands v. People, 113 id. 296.) The argument of the plaintiffs in error that an assessment cannot be levied upon the lands of a district other than upon the application of the land owners of the district, based upon Updike v. Wright, supra, is without force, as the constitutional amendment was adopted with the obvious purpose of meeting the decision in that case. Our conclusion is that this assessment was properly levied upon the petition of the commissioners.
We are also of the opinion that the contention that the itemized statement of accounts filed with the petition by the commissioners is insufficient to give the court jurisdiction to levy this assessment cannot be sustained. The sufficiency of the statement was not challenged in the court below by motion or objection and the filing of said statement is not jurisdictional. Had the sufficiency of the statement been challenged in the court below and been found tO' be insufficient it could have been corrected by amendment, and the land owners of the district cannot now for the first time raise the question of the insufficiency of the itemized statement filed by the commissioners with their report. Fountain Head Drainage District v. Wright, supra; Lovell v. Sny Island Drainage District, 159 Ill. 188; Spring Creek Drainage District v. Elgin, Joliet and Eastern Railway Co. 249 id. 260.
Third—After the commissioners had filed their roll of assessment of benefits and damages, and before a jury was empaneled to make the assessment, a petition was filed, under section 44 of the Levee act, asking that the proceeding to levy this assessment be abandoned. The commissioners and certain land owners of the district made a motion to strike the petition from the files, which motion was allowed and the petition was stricken, and the action of the court in striking the petition to abandon has been assigned as error. Section 44 provides that if, at any time before the contract for the construction of the proposed work shall have been let, a petition shall be presented to the county court to abandon the work, signed by not less than two-thirds in number of all the land owners assessed for benefits in the district to which the petitioners belong, whose aggregate assessment amounts to not less than one-half the cost of the proposed work, and all debts and expenses incurred up to the time of the filing of the petition have been paid, the court shall enter an order upon its records granting the prayer of said petitioners upon the conditions specified in that section of the statute. If it be conceded that the petition here was in proper form and that it was signed by the requisite number of land owners, still we do not think the court erred in striking the petition from the files. • It was but asking the court to undo what it had just determined to do,—that is, order the levy of said assessment,— and amounted to no more than a petition for a rehearing or a motion for a new trial, and no sufficient reason was shown why the prayer of said petition should have been granted.
There is another sufficient reason why the court did not err.in striking the petition to abandon from the files, which is, that section 44 does not apply to every order of the court providing for the levy of an assessment upon the lands of the district, but only applies to such orders and proceedings as are made and take place before the contract is let for the construction of the original system of drainage provided for at the time of the organization of the district, and does not apply to assessments levied for additional work to be done in the district to drain lands in the district which are not sufficiently drained by the original system, or for additional work, or to complete work being, constructed in accordance with the original plans adopted for drainage at the time of the organization of the district.
The scope and office of section 44 were before this court in Soran v. Union Drainage Districtt 215 Ill. 212, where a sub-district was sought to be abandoned and a petition to abandon was stricken from the files. In that case, on page 214, it was said: “The appellants claim that under the provisions of this section, upon the filing of the proper petition to abandon, the court had no discretion in the matter but should have dismissed the petition. We do not think this contention is sound. Section 44 is one of seventy-four sections composing the Drainage act of May 29, 1879. This act provides the successive steps for the establishing of a complete system of drainage, including the organization of the district, the appointment of the commissioners, the levy of the tax, the letting of the contract, etc. Section 44 provides a method of abandoning the work before the contract is let. The contract referred to in the section is the contract for the original ditch or system of drainage. It does not refer to additional work in order to drain lands which are not sufficiently drained by the original system. Section 59, before being amended, provided for the construction of additional ditches after the original assessment had been made, in order to afford complete drainage to lands not sufficiently drained under the original profiles, plans and specifications. If this petition for additional drainage had been filed before the original contract had been let another question would be presented, but as the original contract had been let before the petition for additional drainage was filed, section 44 did not apply.”
The court did not err in striking the petition from the files.
Fourth—It is further contended that section 37 of the Levee act is unconstitutional, first, because that section, as amended, contains more than one subject, which subjects are not expressed in its title; second, because that section does not provide for notice to the land owners of an assessment levied by virtue of its provisions; and third, because that section provides for the levy and assessment upon lands of the district upon the petition of the commissioners, and thereby ignores the rights of the land owners and deprives the land owners of the district of the right to say whether their land shall be assessed.
Our conclusion is that no valid constitutional objection has been suggested by plaintiffs in error to said section 37.
Fifth—It is urged the petition was not sufficient because it does not give the names of all the land owners in the district. We are unable to discover that this question was raised in the court below and it cannot be raised in this court for the first time. (Spring Creek Drainage District v. Elgin, Joliet and Eastern Railway Co. supra.) Section 37 does not require the petition to contain such information, although section 2 of the act for the organization of drainage districts seems to contemplate that the petition shall give the names of the owners, if known. In Huston v. Clark, supra, it was held that the failure to state the names of land owners in a petition for the formation of a drainage district could not be taken advantage of by a land owner on appeal from a judgment confirming a special assessment on his land, where he had contested the application without making any objection on that account, so as to afford an opportunity to obviate the objection by amendment. The Huston case, supra, fully answers the position of plaintiffs in error that it was necessary that the petition state the names of the land owners of the district.
Sixth—It is also urged that the affidavit of non-residence filed with the petition is insufficient because it does not state that the affiant (one of the commissioners) was unable to ascertain, upon diligent inquiry, the residence of certain unknown non-resident land owners. The affidavit did state that there were certain unknown land owners and that upon diligent inquiry the affiant was unable to ascertain who they were, an,d upon the defect in the affidavit being pointed out, the defendants in error, by leave of court, filed an amended affidavit supplying the omission in the original affidavit, and we think this practice admissible by virtue of the terms of section 4 of the Levee act, which provides that the petition, affidavit and order of court may be amended. Affidavits in attachment proceedings, which are jurisdictional by virtue of the statute, may be amended, and we have no doubt but that the legislature may authorize such amendments in drainage proceedings. If, however, the affidavit as to unknown residents was wholly insufficient and the defect was not cured by amendment, that fact furnishes no sufficient reason for the reversal of the judgment of confirmation as to the plaintiffs in error. Sections 60 and 61 of the Levee act furnish a method whereby nonresidents who have not been properly served by publication or entered their appearance prior to confirmation may be' subsequently brought into court- and made parties to the judgment of confirmation, and as no non-resident is now objecting for want of notice, the plaintiSs in error cannot object for them, as they cannot complain of defects in the proceedings or rulings of the court which only affect other parties to the proceedings. (Iroquois Drainage District v. Harroun, 222 Ill. 489; Spring Creek Drainage District v. Elgin, Joliet and Eastern Railway Co. supra.) The cases of Mason and Tazewell Drainage District v. Griffin, 134 Ill. 330, and Sanner v. Union Drainage District, 175 id. 575, were proceedings under the Farm Drainage.act for the purpose of organizing districts, and differ from the case at bar.
It is also said the notice given by the commissioners for the hearing before the jury upon the question of benefits and damages was insufficient. No one is here objecting to that notice who did not appear and who was not heard before the court and jury upon those questions, and having appeared generally, it makes no diEerence whether they were properly notified of the hearing before the jury or not, and they are not in a position to complain on behalf of persons who did not appear. We are of the opinion that judgment of confirmation should not be reversed by reason of the want of sufficient affidavit of non-residents, or by reason of a defective notice to appear before the jury on the hearing upon the question of the assessment of benefits and damages.
Seventh—After the commissioners had completed their roll of assessments, by leave of court they were permitted to amend the roll by adding thereto certain omitted property and by assessing benefits to the highways of the district. The owners of the property added and the commissioners of highways are not here complaining, and the same rule applies here as applies with reference to notice. If the owners of the added, property and the commissioners of ‘highways are satisfied and do not desire to object to the judgment of confirmation, the plaintiffs in error are not in a position to object for them.
Eighth—It is objected that the court erred in admitting in evidence the roll of assessments of the commissioners and in permitting the commissioners to testify upon the trial as to the basis upon which the assessments were made. The Levee act provides that the roll of assessments made by the commissioners shall malee a prima facie case. This implies that the roll of assessments will go to the jury, and when so admitted will carry such probative force as to entitle the commissioners to a verdict confirming the assessment as made by them if the prima facie case made by the roll of assessments is not overcome by the objecting land owners. The court did not err in permitting the roll of assessments to go to the jury, and while it was not necessary that the commissioners should have been called in chief as witnesses, their evidence clearly was admissible in rebuttal, and the judgment of confirmation should not be reversed by reason of the fact that the plaintiffs in error put in evidence all their proof before resting their case. In Lovell v. Sny Island Drainage District, supra, on page 203, it was said: “The assessment roll makes out a prima facie case, and the commissioners are not required to resort to other evidence, except such as may be necessary to meet the evidence introduced by the objectors to impeach the assessment. (Briggs v. Union Drainage District, 140 Ill. 53.) A prima facie case must prevail unless it be rebutted or the contrary proved. (1 Starkie on Evidence, 544.) Prima facie evidence of a fact is such evidence as in judgment of law is sufficient to establish the fact, and if not rebutted it remains sufficient for the purpose.” And in Trigger v. Drainage District, 193 Ill. 230, it was said, on page 235: “Counsel admit that the assessment roll made a prima facie case for the district, but they seem to insist that ‘when any evidence is introduced on behalf of the objectors then such prima facie case loses its force in law, and evidence of some nature must be introduced to rebut objector’s evidence.’ This, they say, ‘has always been the law, and we need cite no cases to sustain our contention.’ We held directly the contrary in Lovell v. Sny Island Drainage District, supra, citing Briggs v. Union Draimge District, supra, Starkie on Evidence, 544, and Kelly v. Jackson, 6 Pet. 622.”
Ninth—It is contended the jury erred in making the assessment, in this: that the lands of some of the objectors were assessed more than they will be benefited, while the lands of others are assessed more than their proportionate share of the cost of the improvement. The jury went upon the lands, and we have been unable to see that the court erred in its rulings upon the evidence which was submitted to the jury, and their assessment, we think, is well within the evidence. We are not, therefore, disposed to disturb the assessment upon the evidence.
Tenth—Complaint is made that the assessment roll of the commissioners, which went to the jury upon the subject of benefits, also contained an estimate of the damages. That part of the roll the jury were instructed not to consider, but that in making up their finding upon the question of damages they should be governed by the evidence submitted to them on that question other than the roll of assessments. The jury could not, therefore, have been misled upon the question of damages by the admission of the roll of assessments, and the fact that generally the jury and the commissioners agreed upon the amount the several tracts of land in the district would be benefited or damaged does not tend to impeach the assessment roll as finally agreed upon by the jury and returned into the court.
Eleventh—Complaint is made of the rulings of the court upon the instructions which were given by the court to the jury. The plaintiffs in error offered no instructions and but five were given to tire jury on behalf of the defendants in error. No specific errors are pointed out in the instructions but the criticisms made thereon are general, and we have been unable from their perusal to discover any errors which should work a reversal of the judgment. We think the jury were fairly instructed as to the law.
We have given this record a patient examination and are of the opinion there is found therein no substantial error. The judgment of the county court will be affirmed.
Judgment affirmed.
