106 Ill. 376 | Ill. | 1883
delivered the opinion of the Com-t:
This was an application by the county collector of Champaign county for judgment against certain lands owned by appellant, for the non-payment of two special assessments made by the commissioners of Union Drainage District No. 2, of the townships of St. Joseph and Ogden, in Champaign county. The lands of appellant consisted of 420 acres, in a contiguous tract, located in section 7. The commissioners, in making the assessment, assessed a gross sum of $600 against the entire tract of land, and it is contended that the assessment is unauthorized and void,—that the law required the lands to be divided, and a separate assessment made upon each tract.
Section 14 of the Drainage act, which provides that the éommissioners shall assess to each tract of land its proportionate share of the entire cost of the work, does not, as we understand the act, require that a tract of land shall be divided into the smallest legal subdivisions in making the assessment, but the more reasonable view is, that two or more tracts, disconnected, should not be valued and assessed together. This is the construction placed upon a similar statute in Spellman v. Curtenius, 12 Ill. 409, where it was held that the statute requiring each tract of land to be listed and valued separately, does not require that such listing shall be upon the smallest legal subdivisions of land, but that two or more disconnected tracts shall not be listed and valued together. Here, the land of appellant was located in the same section, in one body, and for the purposes of this assessment may be regarded as one tract of land.
Section 32 of the Drainage act provides, that where the assessments hereinbefore made shall be inadequate to complete the work proposed, or where assessments shall be necessary for maintenance and repair, each tract of land shall be assessed such proportion of the additional cost as its original assessment bore to the total original assessment, and the said additional assessment shall be made by the commissioners in the same manner that the original assessment was made. At a meeting of the drainage commissioners, November 23, 1880, it was, on motion, ordered that an additional assessment of $1812 be levied on the lands in the district. This order was, at the meeting of January 7, 1881, amended to read as follows: “That eighty-three cents additional assessment be levied on each dollar of the previous levy. ” It is claimed by appellant that the second assessment is^void, for the reason the record of the commissioners fails to show the object of this assessment,—that the amount was necessary to complete the work, or necessary for maintenance and repair. It is true the commissioners had no authority to make a second assessment unless the amount first assessed was inadequate to complete the work, or unless it was necessary to raise money for maintenance and repair; but the statute does not require that the commissioners should place upon the record the reason or object which led to the second assessment, and in the absence of such a requirement by the act, the action of the commissioners can not be held void. If the second assessment was not required for either of the purposes named in section 32 of the act, appellant, as well as every other property owner in the district, had a remedy which would have afforded relief had they appeared before the commissioners when they met to confirm the assessment, and there interposed the proper objection.
It is also urged that the assessment is void for the reason that the right of way and franchise of the Indianapolis, Bloomington and Western Railway Company, which runs through the district, and the public highways, were not assessed, while they were benefited. It was a duty resting upon the commissioners to determine what property was benefited and what was not, and their determination, when called in question for the first time on the application for judgment against the land assessed, must be held conclusive, in the absence of fraud. (Elliott v. Chicago, 48 Ill. 293; Jenks v. Chicago, id. 296.) The judgment of the commissioners in regard to the assessment of property can not, where they have acted honestly and fairly, be overthrown by the mere opinions of witnesses as to what property has been benefited, when application for judgment is made against the land. This, and other like objections, if appellant desired to rely upon them, should have been made at the meeting of the commissioners to confirm the assessment. If the commissioners had denied the relief, the statute gave an appeal. A complete remedy was therefore open to appellant, if he had availed of it at the proper time.
It is also claimed that the act is. unconstitutional,—that it is in violation of the uniformity enjoined in sections 1, 9 and 10, of article 9, of the constitution. We do not think the uniformity here enjoined has any bearing whatever on the question. The amendment of section 31, of article 4, of the constitution, found in the laws of 1877, page 219, which became a part of the constitution by a vote of the people, in express terms authorized the General Assembly to pass laws permitting the owners of lands to construct drains, etc., for agricultural, sanitary or mining purposes, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain drains, etc., and keep them in repair, by special assessments upon the property benefited. The act under which the proceedings were had was passed under the authority of this amendment, and authorized by it, and if sections 1, 9 and 10, of article 9, ever had any bearing upon an assessment of this character, after this amendment became a part of the organic act, it would control, regardless of the provisions of the original constitution.
Other questions of a technical character have been urged, but it will not be necessary to consider them here. We do not regard the objections urged to the application for judgment as valid, and the court, in our opinion, properly overruled them, and rendered judgment against the land for the amount of the assessments.
The judgment will be affirmed.
Judgment affirmed.
