134 Ill. 268 | Ill. | 1890
delivered the opinion of the Court:
This action originated by a bill in chancery by appellants, against appellees, in the circuit court of Iroquois county, to enjoin the collection of a special assessment and the payment of certain bonds. A writ having issued in vacation, appellees appeared at the March term, 1889, of said court, and moved to dissolve the injunction and dismiss the suit, on bill and answers. The motion was allowed, and a decree rendered accordingly. This is an appeal from a judgment of the Appellate Court for the Second District affirming that decree.
The Milk Grove Special Drainage District was organized February 26, 1885. On August 1, following, the commissioners, with the assistance -of one Croswell, as civil engineer, located certain work to be done in the district, and estimated the cost thereof at $14,000. That work consisted of a single drain, designated on the plat as “Main Line Ditch.” On the 10th of the next December the lands of the district were classified, and on January 20, 1886, a levy made of $14,047.50, to construct that drain. On the 9th of August, 1886, before the work on the main ditch was completed, the commissioners located eighteen lateral ditches, the estimated cost of which was $20,000, and on October 11 of that year they made a second special assessment of $20,407.50. This assessment was made npon the former classification, and for the purpose of raising funds to construct said lateral ditches. It is admitted that no notice of the location of these lateral drains was given by the commissioners, though it is averred in the answer that the complainants had' actual knowledge of all the proceedings in relation thereto, and of work done thereon, long prior to the filing of their bill.
Appellants insist that the commissioners had no legal right to make the last named ditches, and. therefore no power to make an assessment to pay for them. Hence they say, the second special assessment was levied without authority of law, and file this bill to enjoin its collection. If these officers were authorized by the statute to make the assessment, then mere irregularities in the proceedings under which it was made would not give a court of chancery jurisdiction to restrain its collection. (Chicago, Burlington and Quincy Railroad Co. v. Frary et al. 22 Ill. 34; Merritt et al. v. Farris, id. 303 ; Keigwin et al. v. Drainage Comrs. of Hamilton Township et al. 115 id. 347.) The element of fraud does not exist in this case.
Section 56 of the Drainage act of 1885 (3 Starr & Curtis, p. 224,) is as follows: “The commissioners, as soon as they are elected or appointed and qualified, shall go upon the land included in said drainage district, and determine upon a system of drainage, which shall provide main outlets of ample capacity for the waters of the district, having in view the future contingencies as well as the present. A competent engineer shall be employed to locate and advise upon the character of the work to be done, and report in writing, with maps, profiles and estimates of cost, and, in a general way, the benefit to accrue to the lands in the several localities of the district. They shall make, or cause to be made, a map or plat of the district, and of the work to be done therein, which map shall show, with reasonáble certainty, the location of the proposed work, and they shall give a name or number to each ditch or drain. The maps .and papers showing the final determination as to the system of drainage shall be filed in the clerk’s office and be recorded in the drainage record.”
Appellants maintain, when this duty has been performed the plans for the drainage of the district thereby become fixpd, and the commissioners can not change them until all the work embraced in the system first adopted has been completed. Conceding that no section of the statute expressly confers the power upon drainage commissioners to change a system of drainage once adopted, we think that power clearly exists by implication. There is certainly nothing in the statute prohibiting such changes, and a moment’s reflection will convince any on.e that the object of the organization of all drainage districts, viz., the drainage of the lands therein,, would be greatly embarrassed, and often defeated, if those having the work in charge had not the power to correct mistakes made by themselves or their engineer in adopting a system. The first duty of the commissioners is to afford the district a system of drainage which will protect all the lands in it. If their first efforts to do so prove unavailing, the duty is not performed, neither is their power in that regard exhausted. Suppose an engineer makes a mistake in his survey of the work, and after" his plans have been adopted and recorded the commissioners become convinced that the system adopted will not effectually drain the district,—will not accomplish the object for which the district was organized,—are they powerless to change it ? Must the district be abandoned, or its money expended without benefit ?
Section 41 of the same act gives the commissioners power, even after the original plans have been carried out, to so change them that all lands in the district, so far as practicable, shall receive their proper and equal benefits, as contemplated when the lands were classified, and, if sufficient funds are not on hand for that purpose, to make a new levy. It could scarcely be seriously contended, that the commissioners of this district, after becoming convinced that the first system adopted would not accomplish the original purpose, were powerless to change it while the original work was unfinished, but could, after having expended the funds of the district (it may be uselessly) in finishing that work, lawfully locate additional drains. Such a construction would often lead to the expenditure of district funds in completing work of no practical value to the district.
It is earnestly contended, that to hold that the plans of work may be changed after being once adopted, is to clothe the commissioners with a dangerous power. As before stated, the object of such organizations is to afford drainage to the lands of the district. It is made the duty of its officers to adopt a system which will best accomplish that object, and their action in that regard is not subject to review, unless they act fraudulently. The system adopted by them, and the estimated cost of the work, are not matters to be submitted. either to the county court or the people of the district, as is assumed in the argument on behalf of appellants. Therefore, whether their first plans are adhered to, or changed before the work is completed, or after it has been practically tested, their power is the same,—no more dangerous in the one case than in the other.
An argument against the view here expressed, as-to the power of commissioners to change their original plans, is attempted to be drawn from section 21 of the Drainage law. That section requires the commissioners, as soon as the plans for the work have been determined upon, to proceed to make special assessments for benefits, by classifying the lands in' the district according to the benefits to be received by the contemplated drainage, and it is provided by said section that such classification,- when established, shall remain as a basis for such levy of taxes as may be needed for the lawful and proper purposes of the district. Subsequent sections provide for an appeal from such classification by any person interested. Assuming that the benefits to different tracts of land in the district could not be relatively the same after the change of plans as before, it is argued that appellants were deprived of the right to question the fairness of the classification upon which their lands were assessed by the second levy. The classification under section 21 is undoubtedly made on the plans then adopted, but it is also made upon the supposition that those plans, when completed, will effectually drain the lands of the district. When those plans fail to accomplish that purpose, and others are adopted which will, the commissioners do no more than make the system conform to "the classification. Had the commissioners gone on and completed the original plan, and it had proved inadequate, under section 41 they might have put in these lateral ditches, if they were necessary to carry,out the original purpose, “to the end that all lands, so far as practicable, should receive their proper and equal benefits, as contemplated when the lands were classified.” The change here, as there, is made for the purpose of conferring the “benefits as contemplated when the lands were classified.”
It is to be observed that there is no averment in this bill that the plans first adopted would have proved sufficient, or that the additional ditches are, not necessary to complete the system of drainage for the district.
For the reasons stated, no notice of the change of plans or of the second levy was necessary. See, also, The People ex rel. v. Chapman, 127 Ill. 387.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.