233 Ill. 417 | Ill. | 1908
Lead Opinion
delivered the opinion of the court:
It is impossible to determine from this record which of the many objections made in the county court were deemed by that court to be valid. Only two of the commissioners acted in spreading the assessment. One of the commissioners so acting was Jacob Binder. The assessment was extended against approximately 700 acres of land. Of this land Mr. Binder is the owner of 204.13 acres. Madison Phillips is the owner of 120 acres. The assessment has been confirmed as to the lands of these two owners. It was objected, among other things, that each tract of land owned by the objectors was assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work and the expenses of the proceeding and in a greater amount than it would be benefited by the proposed work. It was also objected that Jacob Binder was incompetent to spread the assessment by reason of the fact that he owned a large tract of land in the district which was subject to assessment. The record affords some foundation for the contention made by objectors that the proposed work will very greatly benefit the lands of Binder and Phillips but will be of much less benefit to the lands of each of the objectors than the amount of the assessment extended against such lands.
The objection which attacks Binder’s competency to act as one of the commissioners in spreading the assessment of benefits raises a constitutional question. Section 16 of chapter 42, Hurd’s Revised Statutes of 1905, provides that in a proceeding such as this the court shall empanel a jury of twelve men. This jury, when empaneled, has the power to assess the benefits. The same section gives the court authority, “as provided by section 37 of this act,” to direct that the assessment of benefits shall be made by the commissioners of the district instead of by a jury, and under the last mentioned section the commissioners may make the assessment of benefits if the right of way required “has been released” by the owners of the lands, or when the owners of the lands in the district agree that the commissioners may make the assessment, or “in case the court so orders.” We have held in several cases that these provisions are constitutional in so far as they empower the court to direct the commissioners to make the assessment. (Hosmer v. Hunt Drainage District, 135 Ill. 51; Briggs v. Union Drainage District, 140 id. 53; Trigger v. Drainage District, 193 id. 230.) In none of those cases, however, was the question of the competency of a commissioner to act in assessing benefits where his lands were among those subject to assessment presented. In Lacey Drainage District v. Langellier, 215 Ill. 271, we held that the land owners could object to the competency of the persons making the assessment upon the-application for confirmation.
The present constitution of the State (sec. 2, art. 2,) provides that no person shall be deprived of property without due process of law. Like provisions were found in the constitution of 1818 and that of 1848. The term “due process of law” has been often defined. It is doubtful whether any definition affords a test which will enable the courts to determine, in every instance, whether or not any particular statute is in violation of this provision of the constitution. In Burdick v. People, 149 Ill. 600, Frorer v. People, 141 id. 171, Eden v. People, 161 id. 296, and Harding v. People, 160 id. 459, we said that the words “due process of law” were synonymous with “law of the land.” Due process of law, however, does not mean a proceeding pursuant to any law which the legislature may see fit to pass, whether valid or invalid, but does mean “in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.” (Burdick v. People, supra.) Judge Cooley, in his work on Constitutional Limitations, at page 356, uses this language: “Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the' protection of individual rights as those maxims prescribe for the'class of cases to which the one-in question belongs.”
- In determining what' rules and forms have been established for the protection of- private rights or what safeguards for the protection of individual rights the settled, maxims of the law prescribe in such cases as this, we recognize the primal necessity to be laws providing impartial tribunals for the adjudication of rights. Section 9 of article 2 of the constitution of 1870 provides that in all criminal cases the accused shall be entitled to a speedy public trial by an impartial jury. The laws of the State have always placed about the jury box, both in civil and criminal cases, the greatest safeguards that the ingenuity of our lawmakers could devise for the purpose of excluding partial, prejudiced, dishonest and interested jurors. Our laws provide for changes of venue, by which the litigant may avoid the necessity of trying his case before a judge or chancellor believed to entertain a prejudice against him. Every constitutional provision that has ever been in effect in this State dealing with the method by which the property of an individual may be forcibly taken away from him, of necessity contemplated the determination of the question of the right to take that property by an impartial judicial body. By section 20 of article 2, supra, we are admonished that “a frequent recurrence to the fundamental principles of civil government is absolutely necessary to preserve the blessings of liberty.”
While it is true that in a proceeding such as the one at bar the property owner is not entitled to “a trial by jury,” within the meaning of that phrase as it is used in the constitution, still it is entirely clear that in providing for a commission to determine the amount of money that shall be collected from each property owner the law of the land forbids the enactment of a statute that permits the selection of a commissioner who personally has a property interest in the result of the deliberations of the body of which he is a member. Self-interest would lead him to seek a low assessment for his own land and assessments correspondingly high for the lands of others. A statute which compels the litigant to submit his controversy to a tribunal of which his adversary is a member malees his antagonist his judge and does not afford due process of law.
We think the provisions of sections 16 and 37, supra, in so far as they appear to confer upon the court the power to direct one of the commissioners of a drainage district to act with the other commissioners in assessing benefits when the lands of the first mentioned commissioner are or may be subject to assessment, are in violation of section 2 of article 2, supra. In this view of the matter Binder was not competent to act as a commissioner in spreading the assessment. The objection which we have sustained is one which must be made before the judgment of confirmation is entered. If not so made it is deemed waived and will never thereafter be of any avail. If the assessment has • been spread by commissioners who own land in the district and has been confirmed without any objection being filed which raises the question of their competency, the judgment of confirmation is valid and binding, precisely as it would have been had the commissioners owned no land within the district. We have held that in a proceeding under the act concerning local improvements it is error to appoint a person to spread the assessment who has a pecuniary interest in the manner in which the assessment is made. Murr v. City of Naperville, 210 Ill. 371, and cases there cited.
It is unnecessary to consider other questions arising upon the record.
The judgment of the county court will be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting:
I am unable to concur in the view that the provisions of the statute conferring authority upon drainage commissioners who are owners of land in the district subject to assessment, to act in making the assessment of benefits, are in conflict with the constitution and therefore invalid. In Scott v. People, 120 Ill. 129, the right of the commissioners to pass upon the question of the enlargement of the drainage district was attacked by property owners on the ground that it would be submitting the question to be determined to an interested tribunal. The court held this contention unsound, and said in many instances such a situation was unavoidable. Property owners in municipalities sitting as jurors in suits against the municipality, and county and township officers making up and auditing their own accounts for services to the public, were cited as instances where an interested person may properly pass upon questions in which he is to some extent interested. ,1 am not aware of the right of a property owner to hold and discharge the duties of the office of assessor ever having been questioned on the ground that being a property owner disqualified him.
In People v. Cooper, 139 Ill. 461, the action of the commissioners annexing territory to an already organized dis7 trict was attacked. One of the grounds upon which the action of the commissioners was claimed to be invalid was, that they were interested and therefore disqualified to act. They were residents and land owners in the district. JThe court said (p. 496) : “It is not the rule, however, so far as we are aware, that interest as a land owner or tax-payer in a municipal or quasi municipal corporation disqualifies a person for holding office in such municipality or for performing any duty incident to such office, although his own personal or pecuniary interest "may to some extent be affected by his action. And this must be especially true in case of drainage districts, which are organized for the promotion of the private interests of the land owners within such districts.”
Briggs v. Drainage District, 140 Ill. 53, was an appeal from a judgment confirming an assessment made by the commissioners for extending, continuing, deepening, straightening and widening ditches and for additional work in a district previously organized. It was contended the commissioners had no power to make the assessment,—that it could only be made by a jury. This court held that a complete answer to that position was that the statute authorized the commissioners to make the assessment, and said (p. 56) : “Here the court ordered the assessment to be made by the commissioners of the district, and so far as appears the assessment was made in strict conformity to the statute,- and unless the statute is in conflict with some provision of the constitution it must be sustained. No provision of the constitution has been pointed out in the argument which prohibits the legislature from enacting a law authorizing an assessment of this character to be made by commissioners, and we are aware of no such provision.”
Trigger v. Drainage District, 193 Ill. 230, was an appeal by a land owner from the judgment of the county court confirming the assessment made by the commissioners. One of the grounds urged for reversal by the appellant was, that the commissioners who made the assessment heard and determined the objections thereto, and that she was therefore deprived of her constitutional right to a trial by jury. This court said (p. 233) : “We have held that the Drainage law, under which the proceeding was had, especially authorizes the assessment of benefits to be made by the drainage commissioners when the county court so orders or directs, and that that statute is not in conflict with the constitution guaranteeing the right to jury trials.” After quoting the paragraph above set out from the Briggs case the opinion proceeds: “It is clear from the several sections of the act under which this proceeding was had, that the county court may, in the first instance, order the assessment of benefits to be made either by a jury or by the commissioners, and that whichever body is ordered to make the assessment must hear and determine objections filed to such assessment. '(McCaleb v. Coon Run Drainage District, 190 Ill. 549.) The county court had no power to grant the motion of counsel for the objector to empanel a special jury to hear the issues formed on the objections. If evils or hardships result from the statute, the remedy is in the legislature and not with the courts.”
I am not unmindful that some of the cases referred to arose under the Farm Drainage act, and that in none of them, except People v. Cooper, does it appear from the opinion that the, commissioners were land owners in the district; but if the principles and rules of law announced in those cases are correct,, then it appears to me the conclusion reached by the court in this case is erroneous. It is true that allowing commissioners to sit in review upon an assessment made by them, when it is objected to by a.property owner, may not be a wise provision, but this objection will not be remedied by depriving commissioners who are land owners in the district of the power to make the. assessment. This evil, if it be an evil, will exist in as great a degree if the assessment, is made by a jury or by commissioners who own no land in the district, for the body that makes the assessment must hear and determine the objections to it. In my opinion the evils resulting from commissioners owning lands in the district having power to make the assessment are so small and the benefits from it so great, that the statute giving them power to act in that respect should not be declared invalid unless clearly in conflict with the constitution. In the Briggs case this court said it knew of no constitutional provision that was violated by an act authorizing the commissioners to make the assessment. While it does not appear from the opinion in that case whether the commissioners owned land in the district, no distinction is made on that account, and no intimation is found in the opinion that the broad assertion that such a statute violated no constitutional provision was intended to be limited or restricted to a certain class of commissioners. It appears to me the rules applicable to the determination of the constitutionality of statutes, and the cases referred to, furnish sufficient authority to justify sustaining the statute conferring power on the commissioners who may also be land owners in the district to make the assessment of benefits. Holding a statute authorizing this to be done is in violation of the constitution, and therefore invalid, is to seriously impair one of the most valuable provisions of the act, and this should not be done unless required by precedent or the rules of construction, and I think neither requires it in. this case.